Various forms of liability Flashcards
Part 3
What is occupiers’ liability?
Governing statute: Occupiers’ Liability (Scotland) Act 1960
Premises includes fixed or movable structures including any vessel, vehicle or aircraft s.1 (3)
Liability is based on negligence
Duty imposed by statute on the person having occupation and control
Extent of duty has to be considered a) in relation to the pursuer and b) in relation to the nature of the danger
What is “Occupier of premises”?
Duty is imposed on the person having occupation and control of the premises. That is, the person who has the right and means in the circumstances of taking effective steps to protect the visitor from the particular danger whether by removal, notice, fencing or forbidding entry to the premises.
The duty is owed by the occupier only if in control of the premises; if not, the duty rests upon the party in control.
Identification of occupier falls under the common law s. 1 (2). Landlords may be liable where the source of harm falls within their responsibility under the lease. S.3
What is the scope of the duty: OLSA s.1(1)?
The provisions of the next following section of this Act [s.2] shall have effect, in place of the rules of the common law, for the purpose of determining the care which a person occupying or having control of land or other premises (in this Act referred to as an “occupier of premises”) is required, by reason of such occupation or control, to show towards persons entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which he is in law responsible.
What is the extent of the duty: OLSA s.2(1)?
The care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
What is the extent of duty in relation to the victim?
“The section applies both to trespassers and to persons entering property by invitation or licence express or implied. But that does not mean that the occupier must always show equal care for the safety of all such persons. . . In deciding what degree of care is required,. . . regard must be had both to the position of the occupier and to the position of the person entering his premises and it may often be reasonable to hold that an occupier must do more to protect a person whom he permits to be on his property than he need do to protect a person who enters the property without permission.”
McGlone v B.R.B., 1966 S.L.T. 2 at 9, per Lord Reid, HL. (12 y/o 2,500 v)
What does it state about volenti non fit injuria: OLSA s.2(3)?
Nothing in the foregoing provisions of this Act shall be held to impose on an occupier any obligation to a person entering on his premises in respect of risks which that person has willingly accepted as his; and any question whether a risk was so accepted shall be decided on the same principles as in other cases in which one person owes to another a duty to show care.
What is the extent of the duty: dangers?
“In general terms an occupier of land containing natural phenomena such as rivers or cliffs, which present obvious dangers, is not required to take precautions against persons becoming injured by reason of those dangers unless there are special risks such as unusual or unseen sources of danger.”
Fegan v Highland Council 2007 SC 723, per Lord Johnston at 729.
Modifying extent of the duty?
UCTA 1977 s.15, s.16
CRA 2015
S. 65 (1) A trader cannot by a term of a consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligence.
(4) In this section “negligence” means the breach of—(d) the duty of reasonable care imposed by section 2(1) of the Occupiers’ Liability (Scotland) Act 1960
What does CRA 2015 state about forms of liability?
S. 66 (4) Section 65 does not apply to the liability of an occupier of premises to a person who obtains access to the premises for recreational purposes if—
(a) the person suffers loss or damage because of the dangerous state of the premises, and
(b) allowing the person access for those purposes is not within the purposes of the occupier’s trade, business, craft or profession.
What is product liability?
Governing statute: Consumer Protection Act 1987
Supplements common law
A product is…any goods or electricity…includes a product which is comprised in another product…as component or raw material or otherwise
Liability under the Act is strict and cannot be excluded by contractual term or notice s.7
What does section 5 of Consumer Protection Act 1987 explain?
Damage giving rise to liability:
(1) Subject to the following provisions of this section, in this Part“damage”means death or personal injury or any loss of or damage to any property (including land).
(2) A person shall not be liable undersection 2above in respect of any defect in a product for the loss of or any damage to the product itself or for the loss of or any damage to the whole or any part of any product which has been supplied with the product in question comprised in it.
(3) A person shall not be liable under section 2 above for any loss of or damage to any property which, at the time it is lost or damaged, is not—
(a) of a description of property ordinarily intended for private use, occupation or consumption; and
(b) intended by the person suffering the loss or damage mainly for his own private use, occupation or consumption.
What does section 2 of the Consumer Protection Act 1987 explain?
Persons liable:
Under s.2 (2)
The producer (defined in s.1 (2))
Any party holding themselves out as producer
Any party importing the product into the EU
Under s.2 (3)
A supplier failing to respond within a reasonable time to identify any of the three parties listed above
Liability may be joint and several s. 2 (5)
What does section 3 of the Consumer Protection Act 1987 explain?
Defects:
(1) Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes“safety”, in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.
What does section 4 of the Consumer Protection Act 1987 explain?
Defect attributable to compliance with regulation or enactment or
Defender did no at any time supply the product to another or
that the only such supply was other than in the course of business or
That the defect did not exist at the time of supply
Contributory negligence may be pled as appropriate
What is vicarious liability?
Where one party is vicariously liable for the delict of another
Vicarious liability can arise in respect of both negligence and intentional harm
Vicarious liability depends on the relationship between the parties and on the conduct complained of.
The parties must be linked by a relationship of employment or a relationship ‘akin to employment’
There is no vicarious liability for the delict of an independent contractor.
Vicarious liability cannot be defended on the basis of care taken by the defender, either generally or in selecting the wrongdoer for employment.
Vicarious liability is a form of strict liability
Defences open to the wrongdoer are also available to the defender
Liability is joint and several
VL justified on basis that the party whose enterprise is being advanced should bear the risks inherent in the conduct of that enterprise