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31 Cards in this Set
- Front
- Back
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What is occupiers liability |
- An occupier may be liable in tort to a cliamant who suffers personal injury or property damage , whilst on premises due to the defective or dangerous state of premises. |
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Who is an occupier according to statute and what 3 cases gives us a definition of occupier |
s.1(2) 57 refers us to the common law definition of occupier - Wheat - an occupier is a person who has sufficient degree and control of premises - Harris : an occupier does not have to have physical occupation. Humphrey- Exclusive possession is not necessary. |
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What does the Defective Premises act 1972 s.4 |
Even when a landlord does not have sufficient degree and control of premises , if the lease provides for an obligation to repair , the landlord will be liable if C is injured. |
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Who is a visitor according to statute ? When will a person be a visitor ? Also give me 3 cases on when a person will be a visitor |
S1(2) 57 : refers us to common law for a definition. A person will be a visitor if they have express or implied permission to be on premises Robinson : A person entering premises to communicate with the occupier i.e a postman will be a visitor. Lowery: Long use gave rise to status as a visitor Maloney:Lowery is no longer good law. |
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What section of the 57 act covers deemed permission and what is deemed permission |
s.2(6) : those exercising a lawful right of entry will be visitors i.e a policeman executing an arrest warrant. |
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Which section of the 57 act deals with contractual entrants |
s.5(1) : governs the duty of care for contractual entrants. Their status as a visitor will be determined by the terms of the contract |
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What are the limits to visitorship (4 cases) |
A person will cease to be a visitor if they: 1) Calgarth: stray outside the specific purpose of their visit. 2) McCaullife: Strays outside the specific area of the visit. if an area is excluded , the occupier should take steps to show the area is excluded. i.e notice 3) Woking Magistrates: the time of visit , where permission to enter is revoked , the law allows a reasonable time where C will be a visitor. 4) Procter: no notice is required if no one would reasonably expect the visitor to go there. |
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What is a premises? according to statute and what section of the act does it come from? 4 cases which shows premises has been interpreted widely? |
s.1(3)(a) - fixed or moveable structures .. this has been interpreted widely Wheeler - ladders Perry - bouncy castles Simkiss - Mountains Keown - fire escapes |
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Who is a non visitor for the purposes of the 57 act |
1) Trespassers 2) Holden : those exercising a private right of way 3) Mcgowen : those exercising a public right of way |
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What is the common duty of care ? which section of the 57 act What is the case of Atkin? What is the case of Darby? |
s.2(1) common duty of care owed to all visitors s.2(2) this duty is to keep visitors reasonably safe Atkin: a blind man requires a greater duty of care Darby: no duty is owed if risk is obvious. |
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What does section s.1(1) of the 57 act say? What does ogwo v taylor say in relation to s1(1) What does fairchild say in relation to s.1(1) What does the law commission say in relation to s1(1) |
on a close reading of s1(1) , the act includes activity and occupancy duty for liability . Ogwo + fairchild - says that the act only applies to the occupancy duty. They were also dealt with under negligence. Law commission report (75) says the act only applies to the occupancy duty. |
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Which section deals with the duty of care to children and what does it say give me 6 cases on the interpretation of the duty of care to children |
s.2(3)(a) : an occupier must be prepared for children to be less careful than adults. Simkiss: where parents allows their child to wander of then it can be argued that premises are not dangerous. Perry : Bouncy castles did not require constant supervision( decision welcomed by those organising children events) Jolley: Concerned an abandoned boat where a child was injured and the local authority was held liable. Lord hoffman said child should have been given more protection because children find unexpected ways to cause mischief to themselves and others , and that should not be under estimated. Glasgow corp: Where an allurement existed , then occupier must take steps to prevent the danger caused by that allurement . i.e notice or other steps to avert danger. Rochester corp: Young children are supposed to be supervised by parents and their safety rests primarily on their parents. Bourne Lesuire: Courts avoided the binary approach of blaming parents or occupiers . Here occupiers were not liable because additional warnings would not have made no difference because it would not prevented injury. |
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Which section of the act deals with skilled visitors and what does it say and which 2 cases apply here |
s.2(3)(b) : professionals should take precautions against risks ordinarily associated with their job. (this has the effect of a reduced standard of care) Nathan: Per Lord Denning : Professionals should take precautions against risk ordinarily associated with their job. Salmon: Fire man had exercised all the skill of his calling. Thus there was no reason why the fireman should be disadvantaged from claiming. |
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How do you decide if a duty has been discharged in the 57 act what are the 4 cases which apply here |
s.2(4)(a) in deciding if a duty is discharged a warning will be relevant consideration. Roles : a mere warning will not mean that an occupier will escape liability , the warning must also tell visitor how to be reasonably safe. McCarrick: size and placement of a warning can render it incapable of satisfying a duty. Westwood: 'authorised attendant' did not suffice to discharge a duty of care. notice must warn of danger Mars : if the danger is extreme a mere warning will not be enough, a barrier must be added. |
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Which part of the 57 act deals with independent contractors and what does it say. what 3 questions do we need to ask to see if occupier has discharged the duty give me 4 cases . |
2(4)(b): an occupier will not be liable if injury is caused by an independent contractor 1) Was entrusting work to I.C reasonable (for example is he the normal contractor for those purposes 2) Is the I.C reasonably competent (look whether he is insured , suitably qualified and is a member of a trade association. Bottomley : Firework display.The hazardous nature of the job meant that the occupiers should have taken further steps to check the I.C'S competence i.e was he insured against public liability? William: NHS were under a duty to check independent contractors insurance however there was no liability for public policy reasons. The NHS had finite resources which needed to be used for treatment and not for compensation. 3) was the work done properly Hasldaw: the more complex work is the less reasonable it is to check it in person. Woodward: when the local authority or a specialist company hired the IC, they should make a detailed inspection. |
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How do we establish a breach of a duty ? 1 case |
Tesco v ward: occupiers had failed to clean up spillage and caused injury , here the causative link and breach of duty was established. |
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Exclusion of liability 1)what does s.2(1) 57 act say 2) What does the case of Ashdown say 3) Which act restricts s2(1) 57 act 4) what does section 1(3) UCTA say 5) What does 2(1) UCTA SAY 6) what does section 2(2) UCTA say 7) what does s14 UCTA say |
1) Occupiers can exclude liability by notice or express term in the contract. 2) An english mans home is castle therefore , duty owed to visitors may be restricted. 3) The Unfair Contract Terms Act 1977 4) sections 2-7 only apply to business liability that is things done in the course of business or premises used for business 5) cannot exclude liability for death of personal injury 6) Can only exclude liability for property damage if it is reasonable. 7) Business includes things , which would not normally be classed as business such as activities of the government department or local authority. |
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What section of the 57 act tells us about risks willingly accepted ? + case Contributory negligence apply? 2 cases on contributory negligence |
s2(5) : risks willingly accepted will not create liability JD Weatherspoon : if people freely embark on activities they know is dangerous but engage in it anyway , they will have voluntarily accepted risk. Stone : here damages were reduced by 50% Bunker : here damages were reduced by 50% |
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In relation to non visitors what does the case of dumbreck tell us and what was the rational ? |
Duty of care owed to trespassers was minimal . The occupier had to abstain from deliberate harm. The rational is that occupiers should not be bound to protect those who violated his property rights by entering without permission. |
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What does the case of herrington say? |
Dumbreck was no longer persuasive due to social changes. Duty of common humanity owed to trespassers to avert dangers that could compromise thier safety. Child trespasser in mind when this was designed . |
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Who is a non visitor for the purposes of the 84 act ? |
1) trespassers 2) those exercising a private right of way 3) those exercising a lawful right of way i.e ramblers under the Countryside and Right of way Act 2000. |
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who is an occupier for the purposes of the 84 act |
s1(2) refers us to the common law definition of an occupier. Wheat : an occupier is a person who has sufficient degree and control of premises Harris : physical occupation is not necessary Humphrey: exclusive possession is not necessary. |
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what does section 1(1)(a) say in relation to the 84 act give me a case on the occupancy/ activity duty in relation to the 84 act What does M.Jones argue in relation to this case? What does W.Norris argue in relation to this case? What does J. Elvin Argue in relation to this case ? What is the case of Revil? And how does it show common humanity. |
duty of care is only relevant to non visitors where it relates to the state of premises Tomlinson: C injured after d dived into a lake, the act did not apply. There was no liability because D engaged in dangerous activity. M.Jones argues that 'common humanity ' is not preserved in this case as Herrington wanted. W.Norris argues that the courts accept that people have to take personal responsibility J.Elvin argues that this is evidence against the argument of a rampant compensation culture in tort. Revil: D shot a non visitor from close range , in self defence. He used violence in excess of the reasonable limits of lawful self defence. D was negligent by the standards of a reasonable man who found himself in same situation . Damages were reduced by 2/3 , so it can be argued because D did not get away totally free , common humanity is protected to an extent. |
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When will a duty of care arise in the 84 act which section tells us so ? and what are the 3 questions to ask? What is the case of Tomlinson in relation to 1(3)(c) |
s1(3) : an occupier will owe a duty to a non visitor if a) he is aware of the danger or reasonably believes its exists b) knows or reasonably believes a person is in danger c) ought to offer some protection tomlinson : C was not entitled to protection under s1(3)(c) after diving into a lake. it was held that desirable activities should not be prohibited because of irresponsible adults. |
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What does the case of Kewon say in relation to 84 act |
No liability for the occupier if the non visitor trespassed in an unusual way. |
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what does the compensation Act s.1 2006 say |
in determining whether d should have taken particular steps the courts should consider 1) would it prevent a desirable activity 2) stop a person from taking functions connected with a desirable activity. |
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If a duty does arise in the 84 act what section of the act do we employ next what is the case of ratcliffe? What does J. Elvin say in relation to this case |
s1(4): duty to take such care as is reasonable in all circumstances. Ratcliffe : D dived into a pool . the occupier had surrounded pool with a wall + prohibition hours. D offered reasonable protection in the circumstances. J.Elvin : Supports her claims that the courts do not favour males who bring claims to the courts because of their 'nacho diving syndrome'. However Lord Hoffman in Tomlinson has dismissed such claims as a gross hyperbole. |
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How will the courts decide if a duty has been discharged in relation to the 84 act |
s1(5) in deciding whether a duty has been discharged the court may take a warning into consideration , or something done to discourage danger |
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What does section 1(6) say |
No duty is owed to a non visitor if he willingly accepted risk . |
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Section 1(1) UTCA ? |
Does not mention non visitors so it is unlikely that UCTA will apply in relation to excluding liability. |
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s.1(8) of the 84 act? |
84 actress not account for property damage. |
