Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
47 Cards in this Set
- Front
- Back
|
The two occupier's acts...
|
Occupier’s Liability covered by OLA 1957 and OLA 1984
1957 – visitors 1984- others, mostly trespassers 1957 1(1) – Duty of care to visitors in respect of state of premises or due to things done or not done on premises |
|
|
Seeking to prove liability requires...
|
Someone seeking to prove liability needs to show:
- that he has suffered a loss due to state of the premises - identify the occupier - prove he is a visitor - establish that the occupier failed to take reasonable care for his safety |
|
|
OLA57 s1(2)...
|
OLA57 s1(2)
- Doesn’t change the common law position - Occupiers and visitors are the same as common law occupiers and visitors/licencees |
|
|
OLA57 s1(4)...
|
OLA57 s1(4)
- You’re not a visitor if entering via Countryside and Rights of Way Act 2000 s2(1) - You’re not a visitor if entering via an access agreement or order under the National Parks and Access to the Countryside Act 1949 |
|
|
OLA57 s2(6)...
|
OLA57 s2(6)
- For the purpose of s2, persons who enter premises under any right conferred by law are treated as having permission to do so |
|
|
OLA57 s5(1)...
|
OLA57 s5(1)
- When people enter or use, bring or send goods to a premises via a right under contract with occupier, the term implied into the contract is the common duty of care. |
|
|
Who is a visitor?
|
Essentially, anybody who enters with express or implied permission
|
|
|
Definition of "premises"...
|
OLA57 s1(3)
As well as that which regulates common law occupiers and licences/visitors, the act covers any fixed or moveable structure, vessel, vehicle or aircraft |
|
|
The common duty of care...
|
The duty owed under OLA 57 is “the Common Duty of Care”
OLA57 s2(2) - The common duty of care is to take care that is reasonable in all circumstances in which the visitor is invited or permitted to be there that they are safe Standard of care is the same as in an ordinary claim in Negligence – must reach the standard of the reasonable occupier |
|
|
Factors affecting standard of reasonable occupier...
|
- The nature of the danger
- Purpose of the visit - Seriousness of injury risked - Magnitude of risk - Cost and practicality of mitigation steps - How long the danger has been there - Any warning of the danger - Type of visitor |
|
|
Case where there is a grey area between state of the premises and something done on the premises
|
Ogwo v Taylor (1988)
- Defendant set fire to his house trying to burn paint off fascia boards with a blowlamp - Fireman called to the property suffered burns and scalding - Held a duty of care was owed to the fireman, volenti had no application |
|
|
Who is an occupier?
|
Wheat v E Lacon & Co Ltd (1966)
- An occupier is someone who has “a sufficient degree of control over the premises” Note an independent contractor could be considered an occupier whilst working on some premises, whilst in control of the area in which they are working. |
|
|
A specialist on the premise to exercise their skills is expected to guard against risks incidental to their work
|
Roles v Nathan (1963)
- Two chimney sweeps die from carbon monoxide fumes after ignoring repeated warnings to wait until boiler fire is out - Held that under OLA57 s2(3) they were responsible to take care for themselves - Had there been a duty, they had adequate warning too |
|
|
Standard of care higher in relation to children and "allurements"...
|
Glasgow Corporation v Taylor (1922)
- seven-year-old at poisonous berries growing in a public garden and died - Standard of care was higher in relation to a child - Where the danger is an allurement, the occupier must do more to ensure safety |
|
|
Liability for child injuries avoided because it was reasonable to expect child to be accompanied...
|
Phipps v Rochester Corporation (1955)
- Two small children strayed onto a council building site and the younger one broke their leg in a deep trench - It was reasonable to expect children of that age to accompanied by a guardian at all times in a place like that - Liability escaped because the site was safe enough for an adult or accompanied child |
|
|
OLA s2(3)
|
OLA s2(3)
- An occupier can expect children to be less careful than adults in proper cases - An occupier can expect a person, in exercising their calling, to guard against any special risks ordinarily incident to it. |
|
|
Warnings - OLA57 s2(4)(a)
|
OLA57 s2(4)(a)
- Where damage is caused by a danger of which V has been warned, the duty is not discharged unless it was in all the circumstances enough to enable the visitor to be reasonably safe. |
|
|
Factors governing adequacy of warnings...
|
- How specific is the warning?
- Is the danger a hidden one? Is there enough information? - What type of visitor is it? Be aware that there is a difference between excluding liability once breach of duty has been established and discharging the duty by means of a warning. |
|
|
Independent contractors - OLA57 s2(4)(b)
|
OLA57 s2(4)(b)
- If someone is hurt by faulty maintenance or building work carried out by a contractor, the occupier is not to be treated as liable without more, so long as they acted reasonably on the facts in taking on the contractor and satisfying themselves that they were competent and that the work was properly done. |
|
|
Defences to occupier's liability...
|
Volenti non fit injuria/consent/voluntary assumption of risk
OLA57 s2(5) - common duty of care does not impose liability if risk is willingly accepted by visitor. Consent established as per other cases where duty of care is owed. Claimant must know of the precise risk that causes the injury and show by conduct that he willingly accepts the legal risk |
|
|
Case where danger was held to be obvious, so owner of allurement not liable...
|
Bourne Leisure Ltd v Marsden (2009)
- 2 ½ year old drowned in a fenced pond at a holiday park - Parents argued that given the allure, the park should have done more - CA held that the pond and its danger to unaccompanied children was obvious and decided for the park operator |
|
|
Duty can be discharged if contractor's work is too technical for occupier to check...
|
Haseldine v Daw & Son Ltd (1941)
- Landlord of a block of flats entrusts lift maintenance to a reputable firm - Someone is injured by the negligent maintenance - Landlord has discharged duty because the work is too technical for them to be expected to check it |
|
|
Occupier iable because easily able to check work of contractor...
|
Woodward v The Mayor of Hastings (1945)
- Child hurt on an icy school step negligently left in that condition by the cleaner - In this case, the occupier is liable because they were in a position to check the work |
|
|
test for causation and remoteness the same as for common law negligence...
|
Jolley v Sutton London Borough Council (2000)
|
|
|
Reasonable steps taken to bring a clearly worded notice to visitor’s attention can exclude liability
|
White v Blackmore (1972)
- Spectator killed at motor racing event where there are signs and programme notes making exclusion of liability “howsoever caused” and warnings of dangers of motor racing - Warnings did not satisfy 2(4), ie allowing visitors to be reasonably safe - Volenti ruled out by ignorance of the specific risk - Held that reasonable steps had been taken to bring visitors’ attention to a clearly worded notice of exclusion |
|
|
OLA57 s2(1)
|
OLA57 s2(1)
- An occupier owes the common duty of care except insofar as he is free to and does restrict, modify or exclude his liability by agreement or otherwise |
|
|
Warning about OLAs2(1)
|
UCTA77 excludes businesses from being able to exclude liability for personal injury or death from any duty to take reasonable care
S2(1) Must be read subject to the provisions of UCTA |
|
|
OLA57 and COntributory Negligence?
|
Normal rules apply...
|
|
|
Old common law definition of trespasser...
|
Robert Addie & Sons (Colliery) Ltd v Dumbreck (1929) --- (old law)
- A trespasser is one who goes on land without invitation of any sort and whose presence is either unknown, or if known, objected to. |
|
|
Injured trespasser fails to establish liability, because no reason to believe he would be there...
|
Donoghue v Folkestone Properties Ltd (2003)
- Trespassing diver made tetraplegic by mid-winter dive onto underwater grid - Failed to establish liability on appeal because occupier had no reason to believe they would be in the vicinity, despite knowing trespassers dived there in the summer - Failed to satisfy 1(3)(b) |
|
|
Injured trespasser fails to establish any reason to believe in existence of hazard...
|
Rhind v Astbury Water Park (2004)
- Person ignored signs saying “Strictly No Swimming” and did a running dive, hitting head on underwater object - Failed to establish 1(3)(a), the requirement that occupier had reason to believe in the existence of the hazard |
|
|
Fails to establish duty because not due to state of premises...
|
Tomlinson v Congleton Borough Council (2003)
- 18 year old dived into a shallow stretch of lake in defiance of signs warning against swimming - Failed to establish duty because the danger was not the state of the premises, merely the obvious danger of diving in shallow water |
|
|
Occupier who fired shotgun towards trespassers not liable under OLA84...
|
Revill v Newbery (1996)
- Defendant fired a shotgun towards trespasser to frighten them off - T was injured - Held that this was an “activity”, not due to the state of the premises |
|
|
OLA84 s1(1)(a) - duty owed to...
|
OLA84 s1(1)(a)
- Anybody other than visitors in respect of acts or omissions relating to the state of the property A visitor has express or implied permission to be on a premises, the 1984 act applies to those who do not. Therefore, a trespasser may not know he is trespassing. |
|
|
Three further types of non-visitor other than trespassers
|
- People entering under an access agreement or order under the National Parks and Access to the Countryside Act 1949 (s1(4) of the 1957 Act)
- People entering under the Countryside and Rights of Way Act 2000, also s1(4) - People exercising private rights of way over land |
|
|
Occupier owes duty to trespasser if:
|
OLA84 s1(3)
- An occupier owes a duty to a non-visitor if: - He is aware or has reasonable grounds to believe a danger exists - He knows or has reasonable grounds to believe the other is in the vicinity of the danger (whether lawfully or not) - The risk is one from which, on the facts, it is reasonable for him to offer some protection to the other |
|
|
Factors for satisfying OLA84 s1(3)(c)...
|
Satisfying 1(3)(c) - factors
- Nature of the risk; is it obvious or hidden? Do people risk death, or minor injury? - Type of trespasser; adults? Children? Deliberate? Inadvertent? - Cost of precaution or protection… |
|
|
Nature of duty in OLA84 s1(4)...
|
OLA84 s1(4)
- Where an occupier owes a duty in respect of a risk, the duty is to take reasonable care in the circumstances to see that he does not suffer injury on the premises from the danger |
|
|
Does OLA84 protect property/belongings?
|
OLA84 s1(8)
- Where a duty is owed, there is no duty in respect of damage to or loss of property |
|
|
OLA84 s1(9) - definitions...
|
OLA84 s1(9)
- In this section, “highway” is any part of a highway other than a ferry or waterway - “injury” means anything resulting in death or personal injury, including disease, or impairment of physical or mental condition - “Moveable structure” is any vessel, vehicle or aircraft |
|
|
Breach of OLA84 duty...
|
Standard is that of the reasonable occupier, like the 1957 Act.
Relevant factors: - nature of danger, hidden or obvious - age of the trespasser - nature of the premises (level of danger) - the extent of the risk - cost and practicality of precautions - nature and character of the entry (burglar, inadvertent, etc) - the gravity and likelihood of injury - the foreseeability of the trespassing |
|
|
Warnings in relation to OLA84
|
OLA84 s1(5)
- Any duty owed in relation to a risk may, in appropriate cases, be discharged by taking reasonable steps to give warning or discourage the risk-taking Warnings might not be enough if children are involved, eg a fence might be appropriate, or other discouragements |
|
|
Willing acceptance of risk case for occupiers liability...
|
Ratcliff v McConnell and another (1999)
- Person injured diving into a partly drained swimming pool - Liability escaped as it was held that they were aware of the risk and willingly accepted it |
|
|
Defence of illegality for OLA84...
|
Illegality
- In Revill v Newbery, CA thought this would thwart Parliament’s intention to create a safety net, even for criminal trespassers |
|
|
established duty that a contractor owes a duty to take reasonable care to avoid harm to people he could reasonably expect to be affected by his work
|
These people can include trespassers – Buckland v Guildford Gas Light & Coke Co (1944)
|
|
|
OLA84, willing acceptance of risk...
|
OLA84 s1(6)
- No duty for risks which are willingly accepted, to be decided in the same way as in other duty situations |
|
|
Does OLA84 say liability can be excluded?
|
No!
|
