Occupiers Liability

Question 1

Definition

Answer 1

It is the legal responsibility of an occupier for damage caused by the state of the premises

Question 2

Two main statutes

Answer 2

OLA 57 - LAWFUL visitors
OLA 84 - UNLAWFUL visitors/TRESPASSERS

Question 3

First common element

Answer 3

D must be an occupier.
Wheat V Lacon - Anyone with sufficient control over the premises (can be more than one)

Question 4

Common element 2

Answer 4

D must be an occupier of “premises” s1(3)(a) of 57 act. Land and buildings, as well as fixed or moveable structures, including any vessel, vehicle and aircraft.

Question 5

common element 3

Answer 5

Lawful Visitor or Trespasser?
Lawful: Invitees, Licensees (person with implied permission e.g. a delivery driver), Contractual permission (have paid to be there or you are paying them to be there), statutory right (police).
Trespasser: ANYONE WHO’S NOT A VISITOR

Question 6

Element 4 for OLA 57

Answer 6

When is Duty owed?
S2(1) An occupier of premises owes the same duty, the common duty of care, to all his visitors

Question 7

Element 5 for OLA 57

Answer 7

What is the duty owed? S2(2) Reasonable care for reasonable safety.
Laverton V Kiapasha. Took reasonable care
Dean and Chapter of Rochester Cathedral V Debell. Tripping, Slipping and falling are everyday occurrences. No occupier could possibly ensure that all areas were kept in perfect condition.
Risk factors are taken into account:
Size of risk- Miller v Jackson
Seriousness of potential harm- Paris v Stephney
Practicability of precautions- Paris v Stephney
Benefit outweighs risk- Watt v HCC

Question 8

two exceptions to S2(2)

Answer 8

Children
Tradespeople/Professional visitors

Question 9

Children

Answer 9

S2(3)(a)- Occupier must be prepared for children to be less careful than adults and the premises must be reasonably safe for a child of that age.
Glasgow v Taylor- Didn’t take necessary precautions for a child but did for an adult.
Jolley v Sutton- it must be foreseeable that the allurements could cause damage
Phillips v Rochester- D is entitled to presume parents will not let their kids go to clearly unsafe places unaccompanied. (YOUNG CHILDREN)

Question 10

Tradespeople

Answer 10

S2(3)(b)-a person carrying out a trade/calling should ‘appreciate and guard against any special risks ordinarily incident to it’
Roles v Nathan- occupier not liable

Question 11

Defences to claims under OLA 57

Answer 11

Exclusion clauses: complete defence if works but:
1. if for a child, the child must understand the exclusion
2. s65 of CRA says that a tradesperson cannot exclude liability under OLA 57 for personal injury or death to consumers.

Warnings: s2(4)(a) is a complete defence where D gives a warning that ‘in all the circumstances, would enable the visitor to be reasonably safe.’
Rae v Mars- sign did not enable C to be reasonably safe in all the circumstances.

Work done by independent contractors: s2(4)(b) says an occupier is not at fault for the work of an independent contractor if:
1. It was reasonable for the occupier to give the work to an IC.
Haseldine v Daw- IC had specialised skills
2.D made sure the contractor hired is competent to carry out the task
Bottomley v Todmorden Cricket club- IC had no insurance and the way it was performed was dangerous
3. The occupier must check the work has been done properly.
Woodward v Mayor of Hastings- very easy to check and was clear danger still existed.

Question 12

Remedies under OLA 1957

Answer 12

If liable, the occupier can be ordered to pay damages for
a) death/ personal injury
b) property damage

Question 13

Element 4 to OLA 1984

Answer 13

When is the duty owed?
S1(3)-Occupiers only owe a duty if:
a) he is aware of the danger or has reasonable grounds to believe it exists
Rhind v Astbury waterpark- D was not liable
b) he knows or has reasonable grounds to believe that the trespasser is in the vicinity of the danger or that he may come to the vicinity
Swain v Natui- D not liable
c) the risk is one against which he may be expected to offer the other some protection.
Tomlington v CBC- risk was obvious so D needed to take very little precautions to ensure C’s safety

Question 14

Element 5 to OLA 1984

Answer 14

What is the duty?
S1(4)- Occupier has the duty to take such care as is reasonable in the circumstances to see that the trespasser is not injured by reason of the danger.
Risk factors uses.
Size of risk
Seriousness of potential harm
Practicability of precautions
Benefit outweighs risk
CHILD TRESSPASSERS:
Same rules apply to children as they do to adults.
Keown v Healthcare NHS Trust- happened as a result of C’s acts and it did not matter the child was particularly young here.

Question 15

Defences to a claim by a trespasser

Answer 15

Specific warning defence:
s1(5)- If D has shown he has taken such steps as are reasonable in the circumstances to give a warning of the danger or to discourage trespassers from taking the risk, this will be a complete defence.
Westwood v Post Office- sign was clear enough to discourage unauthorised people from entering.

Question 16

Remedies for OLA 1984

Answer 16

S1(8)- Occupier can be ordered to pay damages for death and personal injuries BUT NOT property damage.