EXAM NOTES - Occupiers Liability

Question 1

What are the two crucial pieces of legislation in occupiers’ liability?

Answer 1

Occupiers Liability Act 1957

Occupiers Liability Act 1984

Question 2

which OLA act is it better to do first and why?

Answer 2

OLA 1957 easier to find a claim for visitors than trespassers

Question 3

Sum up the duty in OLA 1957

Answer 3

The occupier of premises owes a duty to all visitors

Question 4

who is the occupier?

Answer 4

Wheat v E. Lacon the person with sufficient degree of control over the premises

Question 5

explain the definition of an occupier

Answer 5

Wheat v E Lacon

1) if the landlord does not live in the property the tenant is an occupier
2) if the landlord does not live in the property and it is empty he is still responsible Harris v Birkenhead Corp
3) if the landlord retains some party of the premises eg hallways they occupy them Maloney v Lambeth BC
4) if the landlord issues licenses only they remain an occupier Wheat v E Lacon

Question 6

what is the general rule about landlords and independent contractors in terms of the occupier?

Answer 6

• the landlord remains generally responsible even if there is an IC too
• but ICs can be occupiers eg AMF International v Magnet Bowling - L and IC both occupy

Question 7

Can you have multiple occupiers?

Answer 7

yes - Collier v Anglian Water - LA and water board both occupiers

Question 8

what are premises under the OLA 1957

Answer 8

more than just land and buildings

• s1(3)(a) OLA 1957 “any fixed or moveable structure”
• Wheeler v Copas a ladder was part of the premises

Question 9

who is a visitor under OLA 1957

Answer 9

people lawfully on the property s1(2)

• by express permission or license eg guests
• by implied permission
• by lawful authority
• by contractual permission s5(1)

Question 10

explain express permission to be on the property under OLA 1957

Answer 10

1) restricted by area and the guest becomes a trespasser when they go beyond it eg Pearson v Coleman Bros child not told to not enter hte animal enclosure
2) restricted by time Stone v Taffe
3) restricted by purpose R v Smith & Jones you are only treated as a visitor as long as you’re doing what you were invited onto the land for

Question 11

explain implied permission to be on the property under OLA 1957

Answer 11

eg Lowery v Walker - D had not prevented the public walking across his field for decades so they had implied permission to be there

Question 12

what is lawful authority to be on someone’s property and how is it limited

Answer 12

s2(6) OLA 1957 eg for policeman and firemen etc but Higgs v Foster policeman had no reason to go onto the land so was a trespasser when injured

Question 13

what is the duty owed under the OLA 1957?

Answer 13

s2(1) “common duty of care” to all visitors

s2(2) OLA 1957 standard of care - reasonable in all circumstances to keep the visitor safe for the purposes of his visit

Question 14

give examples of cases involving the standard of care under OLA 1957

Answer 14

• Latimer v AEC: D did everything they could to avoid injuries short of closing the factory
• Laverton v Kiapasha: D had taken reasonable steps to ensure visitors would not slip over
• Poppleton v Trustees of Portsmouth Youth Activities Committee: D had taken all reasonable precautions and shouldn’t be liable just because C chose to do a dangerous activity

Question 15

how is the OLA 1957 breached?

Answer 15

Did D act as the reasonable occupier would?
- how serious was the risk created by d?
- how foreseeable was the risk?
- how avoidable was the risk?
- what has D done to avoid the risk?
etc

Question 16

How does the OLA 1957 relate to children?

Answer 16

s2(3) children less careful than adults

• therefore higher standard of care owed to them: Jolley v London Borough of Sutton - 14 year old children playing with a boat. D is liable if the particular harm is foreseeable, no need to foresee manner of harm
• doctrine of allurement

Question 17

what is the doctrine of allurement?

Answer 17

• children attracted to dangerous things so the occupier should take necessary precautions
• Glasgow Corporation v Taylor: poisonous berries were an allurement which should have been fenced off
• Perry v Butlins Holiday World: if children are regularly in the area greater care will be appropriate
• occupier though has right to assume children will be supervised Phipps v Rochester Corporation

Question 18

what is the rule for experts and breach in the OLA 1957

Answer 18

OLA 1957 ss2(3)(b) not a breach for occupiers to expect specialists to understand the dangers of the job they are doing
- eg Roles v Nathan chimney sweeps killed while working

Question 19

what is the rule for independent contractors, the OLA 1957 and breach

Answer 19

OLA 1957 s2(4)(b) independent contractor takes liability for the breach if the occupier has:
1. acted reasonably in all circumstances
2. checked the IC was competent, and
3. ensured the work was done properly
- and if the work being done involves a degree of technical skill Woodward v Mayor of Hastings
- Haseldine v Daw - lift maintenance
(- IC might have sufficient control in the areas it is working in)

Question 20

What does the OLA 1957 say about warnings?

Answer 20

1) s2(4)(a) adequate warnings can mean the occupier has discharged their duty of care
2) Roles v Nathan chimney sweeps warned
3) BUT warning must be enough to enable the visitor to be safe eg bridge analogy in Roles v Nathan
4) clear danger = less need for clear warning Staples v West Dorset DC slippery sea wall

Question 21

What is the rule for factual causation and the OLA 1957?

Answer 21

normal rules: but for test

• Cork v Kirby
• Barnett v Chelsea and Kensington HMC
• Apportionment eg Fitzgerald v Lane and Patel

Question 22

What is the rule for legal causation and the OLA 1957

Answer 22

NAI can break the chain of causation so long as they are unforeseeable

• acts of god
• acts of third party
• acts of claimant

Question 23

What defences are there to the OLA 1957

Answer 23

volenti s2(1) and (5)

• a warning notice must be sufficient to the risk to equate to consent on C’s part White v Blackmore
• contributory negligence

Question 24

can an occupier of business premises exclude their liability?

Answer 24

• s2(1) OLA 1957 business occupier can restrict subject to UCTA 1977
• s2(1) UCTA 1977 no restriction in death/PI
• s2(2) and s11 UCTA 1977 Liability for damage to property can be excluded, but it will be subject to the test of reasonableness

Question 25

what case gives the duty owed to trespassers?

Answer 25

BRB v Herrington duty of "common sense and common humanity

Question 26

define a trespasser

Answer 26

Robert Addie v Dumbreck 1) someone who goes onto the premises without the owner's permission 2) and if the owner knew he would object to it

Question 27

when is a duty owed under the OLA 1984

Answer 27

s1(3)(a-c) OLA 1984: DPP Danger Proximity Precautions 1. occupier is (or has reasonable grounds to be) aware of the DANGER, and 2. occupier knows (or has reasonable grounds to know) a trespasser is in the VICINITY of the danger or could come into it 3. it is reasonable for the occupier to PROTECT the trespasser from the risk

Question 28

what duty is owed under the OLA 1984

Answer 28

if s1(3) satisfied then s1(4) duty to take such care as is reasonable to ensure the entrant does not suffer injury - PI only (s1(9)) OLA 1984

Question 29

how is breached determined under the OLA 1984

Answer 29

- same as OLA 1957 - considering all circumstances but easier to satisfy - eg Swain v Natui Ram Puri - no breach because no previous trespassing there and sufficient precautions - Young v Kent CC - breach because known trespassing on the roof and no precautions - but easier to avoid a breach through providing sufficient warning

Question 30

what defences are there under the OLA 1984

Answer 30

1) can give reasonable warning in appropriate cases s1(5) OLA 1984 and if so can use volenti s1(6) OLA 1984 - Tomlinson v Congleton BC signs placed around a lake warned of danger - Simms v Leigh RFC - consented to risks in rugby 2) Can also rely on contributory negligence of the trespasser eg Revill v Newbury damages reduced by two thirds for a trespasser shot by the occupier

Question 31

What is the general standard of care under the OLA 1957

Answer 31

- to act as the reasonable occupier would

Question 32

can an occupier of private premises exclude liability to visitors?

Answer 32

yes: Under s2(1) OLA 1957, an occupier of private premises can exclude his duty of care - Ashdown v Samuel Williams - the occupier excluded liability by use of a notice - White v Blackmore exclusion effective at race event

Question 33

how is contributory negligence judged for children?

Answer 33

with reference to the reasonable child of the same age Yachuk v Oliver Blais

Question 34

How do courts feel about child trespassers?

Answer 34

- generally do not count them as trespassers BRB v Herrington - often use doctrine of implied permission Pearson v Coleman Brothers to make them visitors - or doctrine of common humanity BRB v Herrington to protect them