Tort - Occupier's Liability

Question 1

What legislation largely governs occupier’s liability?

Answer 1

The Occupier’s Liability Act 1957

Question 2

What legislation concerns occupier’s liability with regards to trespassers?

Answer 2

The Occupier’s Liability Act 1984

Question 3

What factor determines who can be classed as an occupier?

Answer 3

Whoever has sufficient control over the premises to amount to a duty of care

Question 4

What is meant by ‘premises’?

Answer 4

Any fixed or moveable structure, including any vessel, vehicle or aircraft

OLA 1957 s1(3)(a)

Question 5

What is a ‘visitor’?

Answer 5

A person to whom the occupier has given express or implied permission to enter (the premises), AND who is permitted by law (warrant, firefighter etc)

Question 6

Is a person using a private or public right of way considered a visitor?

Answer 6

No - but they are owed a duty under OLA 1984

Question 7

Are children treated the same as adults under occupier’s liability?

Answer 7

No - they are considered less ‘careful’ than adults

Glasgow Corporation v Taylor (1922)

Question 8

What is the distinction between the state of a premises, and the activity done on/in them, regarding liability?

Answer 8

OLA 1957 makes provisions for the state of the provisions, NOT the activities being done on them.

Question 9

Does OLA 1957 allow property owners (e.g. car owner) to claim for damage done to their property whilst lawfully on another’s premises?

Answer 9

Yes - OLA 1957 allows for the owner of property to recover from the occupier of the premises

Question 10

What is a common duty of care?

Answer 10

A duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there

Taking reasonable steps to ensure safety of those lawfully on the premises

Question 11

With regards to contractors, what three things must an occupier have done?

Answer 11

1. Acted reasonably in granting the work to a contractor
2. Taken reasonable steps to ensure that the contractor was competent
3. Taken reasonable steps to ensure the contract work was properly done

Question 12

Under OLA 1957, does a visitor’s expertise provide the occupier with a defence?

Answer 12

Not in of itself - a visitor’s calling as an expert is only a consideration as to whether the occupier’s duty of care has been discharged

Question 13

What are the rules on causation in OL?

Answer 13

Same as negligence: application of remoteness test

Question 14

Why are warning signs used?

Answer 14

To discharge the common duty of care imposed upon the occupier by OLA 1957

Question 15

What are the two main options available to an occupier if they wish to extend, restrict, modify or exclude their common duty of care?

Answer 15

1. Use an express term doing so in a contract between the occupier and the visitor
2. Placement of clear and unambiguous notices (in the case of non-contractual entrants)

Question 16

Under which three Acts curtail an occupier’s freedom to limit or exclude their liability?

Answer 16

1. OLA 1957
2. UCTA 1977
3. CRA 2015

Question 17

Situations outside the ambit of OLA 1984

Answer 17

1. A trespasser or other uninvited entrant cannot recover for loss or damage to property
2. Occupiers of areas with a public right of way through/in them do not owe users an obligation
3. Occupiers would not be liable under the Act for acts which do not affect the safety of the premises

Question 18

What are the three conditions under OLA 1984 which must be satisfied before an occupier owes a duty of care to a non-visitor?

Answer 18

1. The occupier is aware of the danger, or has reasonable grounds to believe it exists
2. The occupier knows the other is either in the vicinity of the danger, or will be, regardless of whether the other is a lawful entrant
3. The danger or risk is such that the occupier could be reasonably expected to offer some protection