WS 7 - Occupiers' Liability (1957) Flashcards
Stages to answering Occupiers’ Liability Question on Visitors
STEP 1: State the COMMON DUTY OF CARE of an occupier
STEP 2: Does D owe C a DUTY OF CARE
STEP 3: Has D BREACHED this duty of care?
STEP 4: Did D’s breach of duty CAUSE C’s harm?
STEP 5: Consider DEFENCES that may be available to D
STEP 6: CONCLUDE: explain the liability of the occupier to the visitor
Standard of care under s.2(2)
The occupier owes a duty of care as is reasonable in all the circumstances to see that the visitor is reasonably safe in using the premises for the purpose for which he is permitted to be there.
What must the claimant show to demonstrate there was a duty of care?
1) Claimant has suffered loss due to the state of the premises
2) D is an occupier
3) C is a visitor
s.1(3)(a) OLA 1957
Broad definition of premises = open land; fixed and movable structures
Wheat v E Lacon
An occupier is anyone with a “sufficient degree of control over the premises”, including:
i. Someone other than the owner
ii. Multiple individuals
iii. An independent contractor working on another person’s premises (if have required degree of control over area working in)
s.1(2)
Visitor is anyone with express or implied permission to be there.
s.2(6)
implied permission could be permission in exercise of legal right
s.5(1)
Implied permission could be permission under terms of contract
What if claimant has exceeded his permission?
Becomes trespasser and OLA 1984 applies instead.
Has the D BREACHED this duty of care?
1) State test - s.2(2) OLA 1957 - “D will have breached the duty of care owed to C if his conduct fell below the standard of the REASONABLE OCCUPIER.” Factors to consider in assessing whether there has been a breach:
- Nature of danger
- Purpose of visit
- How long the danger had been on premises
s.2(3)(a) OLA 1957
Children owed higher standard of care
Phipps v Rochester Corp
Very young children: If the occupier makes the premises reasonably safe for a young child AS ACCOMPANIED by the sort of guardian they could reasonably expect in the circumstances, this will amount to compliance with the duty.
Glasgow Corp v Taylor
if the danger is an allurement occupier must do even more to protect child’s safety.
Bourne Leisure v Marsden
a feature of the premises and the danger it poses are obvious.
s.2(3)(b)
an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so. (Roles v Nathan)
s.2(4)(a)
Warning notices will amount to compliance with, and will discharge an occupier’s common duty of care, provided the warning is sufficient to enable the visitor to be reasonably safe.
What to consider when looking at whether warning notice is sufficient.
- Location of the notice
- How specific is the warning
- Is the danger hidden or obvious
- Who is the visitor in question (i.e. can they read english)
s.2(4)(b)
Occupier will not be liable for injury caused to a visitor by faulty work done by independent contractors if:
O ACTED REASONABLY in entrusting the work to contractor
O took reasonable steps to ensure the CONTRACTOR WAS COMPETENT
O took reasonable steps to check the WORK WAS COMPLETED PROPERLY
When can the occupier be expected to check that work by an independent contractor has been completed properly?
Haseldine v Daw: Not on technical work
Woodward v Mayor of Hastings: Yes, on non-technical work
Conclusion?
Has occupier breached his duty of care to ensure that the visitor is reasonably safe in using the premises for the purpose for which he is permitted to be there?
Causation?
Normal causation rules apply
VOLENTI
s.2(5) - usual rules
s.2(1)
On breach of common duty of care, D may rely on an exclusion notice to escape liability.
White v Blackmore
An exclusion notice is valid if:
i. It is CLEARLY WORDED
ii. Reasonable steps are taken to to DRAW VISITOR’S ATTENTION TO NOTICE
When does s.2 UCTA apply?
In case of business occupiers.
