Occupiers Liability

Question 1

Occupiers Liability

Answer 1

Arises when entrants (lawful + unlawful) are injured upon entering dangerous and defective premises

Question 2

Can employers of drivers/passenger sue under OLA?

Answer 2

Under 1957 + 1984

• Can actually fall under 1957/1984 but they usually use systemic negligence

Question 3

Preconditions for OLA

Answer 3

1.) Defendant must be an occupier

2.) Premises to which the Act relates

3.) Static vs Activity Dangers

Question 4

1st Pre-Condition of OLA

Answer 4

D must be an occupier as per Wheat v Lacon

• “Sufficient degree of control over premises”
• “He need not have exclusive occupation”

Question 5

2nd Precondition of OLA

Answer 5

1.) See definition in OLA 1957, s 1(3)(a); OLA 1984, ss 1(2), (9)

2.) Can relate to ‘natural features’ - but no liability in this case - Tomlinson v Congleton

3.) Dangerous and Defective **premises - **Geary v JD Wetherspoon plc ** - sliding down the stairs is obviously not dangerous/defective - V ought to have known

PREMISES

Question 6

3rd Precondition of OLA

Answer 6

Static condition - Arises from the condition of the premises and not an activity

* C’s injury must arise from a static condition (not active)

Keown makes this clear despite what the statute S1(1) OLA 1957 + 1984 say

Question 7

Does it matter static or active?

Answer 7

*Fairchild

• Matter of semantics? Does it really matter?

But static provides better protection tbf (57)

Question 9

What do you need to establish after the preconditions?

Answer 9

Which of the OLA 1957 or OLA 198 applies?

Would prefer the 1957 Act for the claimant

Question 10

How do we know whether OLA 1957 or 1984 applies?

Answer 10

1957 s2(2) -> the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there

But one can ‘slip up and down the bannisters’

Question 11

How can one go from a lawful visitor to a trespasser?

Answer 11

If the visitor exceeds the bounds of permission,

Per OLA 1957, s 2(2),

Per The Carlgarth [1927]

Question 12

Example of sliding down the bannister + Not sliding dwn

Answer 12

Keown - Entering hospital (counts as a visitor) but climbing up an external ladder (Tresspasser)

Darby - Lawful visitor tresspassed but sign was not clear so still s.57

Question 13

How can you slide up the bannister? Two methods

Answer 13

• Doctrine of Allurement
• An implied licence to enter

Question 14

What is the doctrine of allurement and does it still apply?

Answer 14

Relevant to children

Cooke - Turntable which you can spin, a child thought it was cool and enticing - D knew childrren could get through railway land to turntable - Child turned into a lawful visitor

Ward - ‘Fascinating + Fatal”

Keown - NO PLACE ANY LONGER BUT S.1 (2) DONT RULE IT OUT

Most probably not

Question 15

Implied licence to enter

Answer 15

**Common usage of access - **

Cooke v Midland - 4 year old wnet onto unfenced railway property

An implied licence arises when a person’s conduct or the state of the premises suggests they are permitting entry, even without express permission

But Maloney - 10year old boy fell from climbing roof -> No license/allurement

Question 16

Duty of Care of Liability towards Lawful Visitors

Answer 16

**The duty is statutorily stated, per s 2(2)
**
‘ The occupier is required to act positively ‘to see that the visitor will be reasonably safe’,
‘
Note the effect of s5(1) for contractual elements -> Much better in terms of DoC

Question 17

Standard of Care for Lawful Visitors

Answer 17

**Standard of care (sets the standard for how one ought to act) = Reasonable - s2(2)

However, the standard can be more onerous where C is a child per s2(3) a

• Jolley v Sutton - Children = standard of care is higher

-* Phipps v Rochester* - If it was reasonable to expect guardian was involved -> Standard of care = lower

Burke - An older child standard of care = lower

Question 18

Examples of lawful visiters

Answer 18

• Contractual entrant
• Invitee
• Licensee under (express)
• Licensee (implied) - Not expressly invited but may be enticed onto occupies land

Question 19

Things which do not influence standard of Care for lawful visitors

Answer 19

Spearman - charitable interests standard of care does not go to lower

Question 20

Proving breach of the common duty of care for Lawful Visitors

General Principle

Answer 20

Usual test of foreseeability + Quadrant Factors - Tacagni

Question 21

General Factors to consider in Breach of Duty of Lawful Visitors

Answer 21

Professional Trade - Standard of Care = higher Byrne

Obvious Risk - No duty to warn or prevent -> if the danger is really obvious to the visitor Tomlinson

Occupiers are not Insurers - The duty is to take reasonable care, not to guarantee safety. Visitors must accept some level of everyday risk. *Apres Lounge Ltd *

Question 22

3 exceptions where a breach is found under OLA

Lawful Visitors

Answer 22

1.) Expert Specialists

2.) Occupier gave warning to entrant

3.) Dangers created by an independent contractor engaged by the occupier

Question 23

Elements of claiming an excuse against breach via the C being an expert specialist when visiting occupier’s premises

Lawful Visitors

Answer 23

• Entrant = special skill or calling
• The risk of danger was one that related to a his special skill
• Danger manifested C could have taken reasonable steps to guard against,* because D allowed him to appreciate (recognise) the risk*

Roles - O warned. Sweeps = skilled profs expected to appreciate

Question 24

Occupier gave warning to entrant - Excuse to breach

Lawful Visitors

Answer 24

• There was a warning
• The notice must be sufficient

Roles v Nathan
Darby v National Trust

Roles - O warned. Sweeps = skilled profs expected to appreciate

Question 25

Exceptions to breach - **Dangers created by an independent contractor engaged by the occupier** | Lawful Visitors

Answer 25

* Damage created by an indepenedent contractor * Injury was due to faulty execution of work by independent contractor * Occupier acted reasonably in employing an independent contractor * Occupier took steps as one reasonably ought to do -> making sure contractor was competent + work properly done | ***Dyson v LE Sims ***

Question 26

Duty of Care for unlawful entrants Requirements | OLA 1984

Answer 26

**1.) Danger on the premises** **2.) In the vincinity of Danger** **3.) Expected to offer the trespasser some protection**

Question 27

1st element of Duty of Care towards unlawful visitors

Answer 27

*** The danger on the premises** Has to be aware of the danger or has reasonable grounds to believe the danger exists - **Non-obvious danger **more likely ***Donohuge*** - Type of sufficient knowledge - **'shut eye' + actual knowledge**

Question 28

Cases on danger on the premises (1st element of DoC) for occupiers liability | UNLAWFUL

Answer 28

**Young v Kent ** **Rhind v Astbury ** Running dive into fiber glass container - no way occupiers knew or had reasonable grounds to believe container was present -** NO DOC**

Question 29

Element 2 of Duty of care to a tresspasser

Answer 29

D has to know C is **in the vicinity of the danger** - how close or far Actual + shut eye knowledge **Donoghue** -> Time specific knowledge -> Someone would not know someone would be diving on such an inhospitable night **Young v Kent** -> D knew C went onto the roof

Question 30

3rd condition of DoC for tresspasser

Answer 30

Expected to offer the trespasser some protection - Obvious v non obvious dangers - ***Tomlinson*** - Adult v Children - ***Donoghue v Folkestone + Burke (15 year old had adult-like assesments)***

Question 31

Standard of Duty for trespassers

Answer 31

* The reasonable standard, having regard to the circumstances of the trespass, per s 1(4) **Young v Kent CC** - very cheap to stop this * The resources available to D are relevant ***Keown*** -> difficult to implement stairs everywhere up and down the country

Question 32

Sole Statutory 'escape hatch'. for standard of breach | UNLAWFUL

Answer 32

where occupier gave warning, per s 1(5) Ratcliffe v McConnell

Question 33

Defences of OC

Answer 33

Trespassers cannot recover for property damage: s 1(8), OLA 1984

Question 34

Causation + OC

Answer 34

The trespasser must suffer the injury ‘due to the state of the premises’, per s 1(1)(a), OLA 1984 ** Brown v South West Lakes Trust **