Unit 6 Flashcards
Occupiers’ liability Act 1957 and Occupiers Liability act 1984:
1957: governs duties owed to visitors
1984: Governs duties owed to others primarily trespassers
Both acts addressed dangers due to the state of the premises
What are the four factors that are visitor must prove under the 1957 act?
- Lost due to the state of the premises the injury must arise from a danger related to the condition of the property.
- Identification of the occupier determining who has sufficient control over the premises.
- Proof of visitor status by establishing that they have permission to be there.
- Failure to take reasonable care demonstrating that the occupier breach their duty of care.
Who is an occupier?
Case law supplies this.
WHEAT V E LACON & co: established the sufficient degree of control test. Therefore, someone who has sufficient control over the premises can still be an occupier
There can be more than one occupier of the same premises
An independent contractor working on another persons premises could also constitute an occupier
Who is a visitor?
The 1957 act defines visitors as those with express or implied permission. Includes those entering under contract or by legal right. For example police officer with a warrant.
Definition of premises:
S 1 (3)(a): exceptionally broad. Includes open land, fixed or movable structures, vessels, vehicles or aircraft.
The common duty of care to visitors:
The duty owed to all visitors under the act. It requires the occupier to take such care as is reasonable in all the circumstances to ensure the visitors reasonable safety.
Factors considered in breach of common duty of care:
- nature of the danger
- Purpose of the visit
- Seriousness of potential injury
- Magnitude of the risk
- Cost and practicality of preventative measures
- Duration of the danger
- Presence of warnings
- type of visitor
Special consideration for children:
For child visitors, occupiers must anticipate that children are less careful than adults.
Glasgow corporation v Taylor: the allurement of the berries increased the occupiers duty. The standard of care should increase.
The duty of care can be mitigated by parental responsibility.
Occupiers don’t have to protect against OBVIOUS dangers
Special considerations for skilled visitors:
A 2(3) of the 1957 act: the technologies that skilled visitors should be expected to handle risks inherent in their specific profession. The occupier can reasonably expect skilled visitors to appreciate and guard against any special risks which are part of the visitors job.
Escaping breach by warnings:
S 2 (4)(a) - an adequate warning discharged to occupiers duty of care. The key is whether the warning enables the visitor to be reasonably safe. This is a specific inquiry.
Factors that determine adequacy for warnings:
They must be specific
Hidden dangers require more specific warnings or obvious dangers less so.
Type of visitor: children require more explicit warnings than adults. Written warnings may be insufficient.
When can occupiers discharge their duty for independent contractors:
Section 2(4)(b)
If it was reasonable to trust the work to an independent contractor
They took reasonable steps to ensure the contractors competence
They took reasonable steps to ensure the work is properly done
Occupiers are not expected to check highly technical work but should check work that does not require specialist knowledge.
What defenses do occupiers have against liability?
Voluntary assumption of risk: the claimant must have full knowledge of the precise risk and voluntarily accept the risk.
The occupier would have to prove the visitor knew of the exact danger that caused the damage. ALL VISITORS ENTER AT THEIR OWN RISK is unlikely to suffice.
Can occupiers exclude liability?
A 2(1) - occupiers can attempt to exclude liability but it is subject to limitations.
For example, reasonable steps to bring the exclusion notice to the claimant’s attention before the tort. The wording must cover the loss suffered.
How else can occupiers be limited?
Through UCTA and CRA 2015.
Private occupiers are not subject to them.
UCTA: exclusion of liability for death or personal injury due to negligence is void. Exclusion for property damage is subject to a fair and reasonable test.
CRA: exclusion of liability for death or personal injury due to negligence is void. Same as above.
Who is defined as a trespasser?
A trespasser is someone who enters land without invitation of any sort and whose presence is either unknown or objected to.
Ignorance of trespassing status is irrelevant. A person can change status from visitor to trespasser by exceeding permission.
Duty of care to trespassers:
A duty to trespasses is not automatic. Conditions for a duty to exist include.:
- occupier is aware of the danger or has reasonable grounds to believe it exists
- Occupier has reasonable grounds to believe the trespasser is or may come into the vicinity of the danger
- Occupy can reasonably be expected to offer some protection.
Reasonable to offer protection points:
Nature and extent of the risk (obvious v hidden)
Type of trespasser (adult v child)
Cost of precautions
Does the duty to trespassers cover injury?
Yes, but not property damage
Is the occupier liable for an activity of claimant?
No, as the risk would arise from the claimants actions, not the date of the premesis.
Breach of duty for trespassers:
Duty is to take such care as is reasonable to prevent injury. Includes:
Nature of danger
Age of trespasser
Cost and practicality of precautions
Nature of premesis
Extent of risk
Nature and character of entry
Foreseeability of trespasser
Adequate warnings …
Can discharge a duty. Obstacles may be required for children.
Defences in trespass cases:
Voluntary assumption of risk: common law defense.
In ratcliff v McConnell and another, the claimant knowingly accepted the risk of diving into a shallow pool so the defence succeeded.
THE DEFENCE OF ILLEGALITY DOES NOT WORK FOR 1984 act CLAIMS. it would undermine the acts purpose of protecting trespassers.
In cases of trespass, can the occupier exclude liability?
The 1984 act is silent on exclusion. Silence may indicate it is not permitted.
