Tort - Occupier's Liability

Question 1

Premises

Answer 1

Land and fixed and moveable structures

Applies to ships, trains, scaffolding and ladders

Question 2

Occupier

Answer 2

Person with control over the premises

Can be the occupier without being the owner if they have sufficient control

Owner of premises who has not maintained control is not an occupier

Case law has established that there can be more than one occupier and physical occupation is not required

Question 3

Harm

Answer 3

Covers harm only from condition of premises rather than activities carried out on premises

Question 4

OLA 1957 Act: Visitors

Answer 4

Allows for recovery for personal injuries and property damages

1. Invited by occuper
2. Permitted by occupier
3. Permitted by statute

Visitors exceeding scope of permission may become trespassers

Question 5

Care owed to visitors

Answer 5

Common duty of care - all visitors owed the same duty of care

Balancing test:

Magnitude of risk vs Practicability of taking precautions

Question 6

Visitors must be reasonably safe in using the premises

Answer 6

Occupier is not required to remove hazard completely

What is reasonable will depend on the type of visitor

Question 7

Two classes of visitors

Answer 7

1. Children; occupier to take into account what “prudent parents” would do
2. Skilled visitors; occupier may expect them to appreciate and guard against any special risks and dangers not obvious to ordinary adults

Question 8

Independent Contractors

Answer 8

To avoid liability occupiers need to take reasonable steps to ensure they have engaged competent contractors and work was reasonably done

Question 9

Defences under 1957 Act

Answer 9

Contributory negligence

Exclusion of liability for property damage - exception to this is if occupier acting in the course of a business they cannot exclude liability for PI or death caused by negligence and any exclusion for other damage must be reasonable

Question 10

OLA 1984: Trespassers

Answer 10

Only covers an entrants personal injury not property damage

Question 11

Duty of Care to Trespassers

Answer 11

Three conditions for duty of care:

1. Knows or should know of danger
2. Knows or should know trespasser in vicinity of danger or likely to come into vicinity
3. Reasonably could be expected to offer protection against danger

To take such care as is reasonable under the circumstances to ensure trespasser doesn’t suffer injury - less burdensome than for visitors

Question 12

Warnings

Answer 12

Duty may be discharged by taking such steps as are reasonable to give a warning of the danger or to discourage the trespasser from incurring the risk

Question 13

Defences under 1984 Act

Answer 13

Voluntary assumption of risk

Contributory negligence

Question 14

Defective Premises Act 1972

Answer 14

Landlord who has parted with control of the premises is not an occupier - however, they may owe a duty of care under this Act in respect of defects in the state of the premises

Duty covers defects within the scope of the landlord’s repair obligations or rights

Owed to anyone who might reasonably be expected to be affected by the defect

Standard of care is the same as is owed to visitors by occupiers

Covers personal injury and property