Tort - Occupiers' Liability (8) Flashcards
What is occupiers liability?
Occupiers’ Liability: Occupiers owe a duty of care on their premises, by default to visitors, and on certain conditions to trespassers.
(1) Occupier: An individual with an ‘element of control’ over premises (Wheat v E Lacon).
(2) Premises: Widely defined, including open land, fixed and movable structures (s1(3) OLA 1957).
(3) Visitor: An individual with express or implied permission to be on the premises.
Statutory Rights: Includes those entering under terms of contract or right of law (police on warrant).
Exceeding Permission: Where one exceeds terms of permission, they become a trespasser.
(4) Trespasser: An individual on premises without or exceeding permissions to be on the land.
Threshold: Presence must be unknown/practically objected to by occupier (Robert Addie v Dumbreck).
Knowledge: Individual need not know they are trespassing, so long as they have no permission.
What is the duty to visitors?
Duty to Visitors: Occupiers must take reasonable care to ensure a visitor is ‘reasonably safe’ on their premises for the purposes in which they are permitted to be there (s2 Occupiers Liability Act 1957).
Breach of Duty
Breach of Duty: Occupiers are in breach if they fall below the standard of the ‘reasonable occupier’ (s2).
(1) Reasonableness: Determined with regard to nature of visit, magnitude of risk, cost of precautions, length of present danger, warning signs, and type of visitor.
(2) Children: Occupiers should expect children to be less careful than adults, meaning they are in breach for failing to warn of or insulate child-specific dangers, such as poison berries (Glasgow v Taylor).
Very Young: Occupiers can expect very young children to be accompanied by an appropriate guardian at all times, even if this is not the case (Phipps v Rochester).
(3) Contractors: Occupiers should expect professional contractors to take their own precautions in respect of dangers relevant to their visit, provided the occupier has notified them of it.
>A pest controller should be expected to insulate against pests, but not, for example, broken floorboards.
(4) Warning Signs: Adequate warning signs specific to a danger may allow an occupier to comply with their duty, ergo not breach it. However, lack of use does not equate to breach (English Heritage v Taylor).
Obvious Dangers: Occupiers are not expected to warn of obvious dangers, such as drowning by lake.
Children: Warnings signs are less likely to be adequate in respect of children.
(5) Work of Contractors: Occupiers may not be liable for dangers created by the ‘construction, maintenance or repair’ work of an independent contractor.
Requirements: a) It was reasonable to employ the contractor; b) the occupier took reasonable steps to ensure the contractor was competent; c) the occupier took reasonable care to check the work.
Specialist Knowledge: Where specialist knowledge is required to check safety of the work, a reasonable occupier is not expected to check (Haseldine v Daw).
General Knowledge: Where general knowledge is adequate to check the safety of the work, a reasonable occupier is expected to check (Woodward v Hastings).
Causation
Causation: Causation is the same as in negligence, meaning legal causation, intervening acts and remoteness (Jolley v Sutton). A claimant can only claim provided their harm was caused by the state of premises, not the individual actions of the occupier.
>(A) is injured by (B)’s rusted gate. This is harm caused by the state of the premises.
>(A) is injured on (B)’s land because (B) shoots them. This is not harm caused by the state of the premises.
Defences
Defences: The occupier may rely on a number of defences.
(1) Consent: Claimant knowingly and willingly consented to the precise risk that caused their harm (s2).
(2) Contributory Negligence: Claimant was partly responsible for their own harm through negligence.
(3) Exclusion Clause: The defendant excluded liability through a clearly worded notice, and used reasonable steps to bring it to the claimant’s attention (White v Blackmore).
Commercial Premises: Signs on commercial premises are subject to CRA/UCTA, meaning they cannot exclude liability for injury or death, and must be reasonable or fair.
Type of Harm: Notice must specify the type of harm, not the cause of harm.
>I.e. ‘Liability for property damage’ not ‘liability for trip hazards’.
What is the duty to trespassers?
Duty to Trespassers: Occupiers may owe a duty to take reasonable care to ensure trespassers and right of way users are ‘reasonably safe’ on their premises, provided three elements are made out (s1 Occupiers Liability act 1984).
(1) Knowledge of Danger: Occupier must be aware of, or have reasonable grounds to believe in, a danger on their premises (Rhind v Astbury).
(2) Knowledge of Vicinity: Occupier must be aware, or have reasonable grounds to believe, that the claimant or someone of their description could enter the vicinity of danger at the time they did (Donoghue v Folkstone).
(3) Reasonable Protection: It must be objectively reasonable to expect the occupier to have offered the claimant some form of protection against the danger, unless refused (Ratcliff v McConnell).
Standard: The protection must be reasonable with respect to risk, type of trespasser, and cost (s1).
Breach of Duty
Breach of Duty: Breach is the same as under OLA 1957, including warning signs and ‘discouragements’ such as fencing.
Causation
Causation: Causation is the same as for visitors.
(1) Type of Harm: Only personal injury is recoverable, including psychiatric. Property damage is irrecoverable.
Defences
Defences: A number of defences also exist, some are prohibited.
(1) Consent: Consent is valid as under visitors.
(2) Contributory Negligence: Applicable as under visitors.
(3) Exclusion of Liability: It is unclear if this applies, but it is not in the legislation.
(4) Illegality: The defence of illegality does not apply, and can quash a claim (Revill v Newbury).
