Occupiers' Liability

Question 1

What is occupiers’ liability?

Answer 1

Claims brought against occupiers of premises by people who are on premises

Question 2

What are the two different kinds of occupiers’ liability?

Answer 2

Visitors (OLA 1957)

Non-visitors, ie. trespassers (OLA 1984)

Question 3

Who is the ‘occupier’?

Answer 3

The person who has control of the premises

eg. could be an independent contractor if they have sufficient control of the premises etc.

Question 4

What are premises?

Answer 4

‘Any fixed or moveable structure’

eg. Ladder = premises; inflatable art = premises

Question 5

Who is visitor?

Answer 5

Someone with express or implied permission to be there

• ‘Express’: literally invited there
• ‘Implied’: eg. if have rights of entry (grounds open to public) etc.

Question 6

Who is a trespasser?

Answer 6

Someone with no express or implied permission to be there

or

Someone who did have permission to be there but exceeded their permission in terms of time, space or purpose for which given permission

Question 7

When will a duty of care arise if the claimant is a visitor & the defendant is an occupier?

Answer 7

Always → an automatic duty of care owed

Reasonable care in all the circumstances to ensure visitor reasonably safe in using premises for the purpose they are permitted to be there

Question 8

What is the standard of care owed by an occupier to a visitor?

Answer 8

Reasonable care to ensure visitor is reasonably safe

Question 9

What if the visitor is a child?

Answer 9

Occupier must be prepared for children to be less careful (ie. standard of care higher)

• Allurements: certain things more exciting to kids - if foreseeable child will be attracted to something, occupier expected to take reasonable steps to protect children from that danger
• But should expect parents to supervise their children

Question 10

What is the visitor is a skilled visitor?

Answer 10

Standard of care in relation to their particular skill goes down

→ **ie. can normally assume contractor can guard themsleves against any particular risks connected to that work

Question 11

Which losses can a visitor claim for in occupiers’ liability?

Answer 11

Personal injury & property damage due to state of premises

Question 12

What are the 2 possible defences for an occupier against a visitor?

Answer 12

Consent + contributory negligence

Question 13

Can an occupier discharge their duty of care by use of a warning?

Answer 13

Yes if it is adequate enough to make visitor reasonably safe (ie. must be specific

Nb. common law reqs re legally effective exclusion notice:

1. Reasonable steps taken to bring notice to visitor’s attention before tort committed
2. harm suffered covered by wording of notice

Question 14

What are the 2 common law requirements for a legally effective exclusion notice?

Answer 14

1. Reasonable steps taken to bring notice to visitor’s attention before tort committed

and

2. harm suffered covered by wording of notice

Question 15

Can an occupier discharge their duty by employing an independent contractor?

Answer 15

Yes if:

1. Occupier was reasonable to hire contractor in first place

and

2. Occupier was reasonable in checking competence of contractor

and

3. Occupier was reasonable in checking work properly done (nb. the more technical the work is, the less reasonable it is to expect the occupier to check)

Question 16

What losses can a trespasser claim for in occupiers’ liability?

Answer 16

Personal injury caused by the state of the premises only

Question 17

Does an occupier owe a duty of care to a trespasser?

Answer 17

Only if:

1. Occupier knows of the danger
2. Occupier knows that the trespasser is in the vicinity of the danger
3. Occupier is reasonably expected to offer protection from the danger (eg. if hidden danger)

Question 18

What defences are available to an occupier against a trespasser?

Answer 18

Consent + contributory negligence

Question 19

Can an occupier claim the defence of illegality against a trespasser?

Answer 19

NO (only consent or contrib)

Question 20

What are the rules about exclusion of liability where:

• Occupier is a trader & visitor is a consumer
• Business liability (done in course of business / premises used for business purposes)

Answer 20

Cannot exclude liability for death or PI

but can exclude liability for other losses if reasonable to do so

Question 21

What is the common law rule about exclusion of liability (ie. where not trader & consumer or business liability)?

Answer 21

Can exclude liability for any loss if it is reasonable to do so

(eg. won’t be reasonable if risk obvious & precautions cheap n easy)