Help
Options
Didn't know it?
click below
click below
Knew it?
click below
click below
Don't Know
Remaining cards (0)
Know
retry
shuffle
restart
0:00
Embed Code - If you would like this activity on your web page, copy the script below and paste it into your web page.
Normal Size Small Size show me how
Normal Size Small Size show me how
Tort Law MG
Occupier's liability
| Question | Answer |
|---|---|
| Occupiers’ Liability Act 1957 | governs the law relating to visitors/abolished the distinction between invitees and licensees/imposed a common duty of care on the occupier towards visitors/covers personal injury suffered by a visitor and damage to property |
| Occupiers’ Liability Act 1984 | governs law relating to non-visitor/trespassers, persons using private right of way or rights under the Wildlife and Countryside Act 2000/not to public right of way as highway covered Highways Act 1980/only applies to personal injury not to damage to prop |
| Wheat v Lacon (1966) | held that the occupier is the one who exercises a sufficient degree of control over the premises/This indicates that more than one person could be the occupier and is a question of degree in each case. |
| Harris v Birkenhead Corporation (1975) | no requirement for the occupier to have a legal estate in the land only that a sufficient degree of control is exercised over the property |
| Premises | include “any fixed or movable structure, including any vessel, vehicle or aircraft.” |
| Wheeler v Copas [1981] | also includes such things as diverse as a ladder |
| Haseldine v Daw (1941) | a lift |
| Jolley v London Borough of Sutton (2000) | an upturned boat on the beach |
| Premises must have | a “defect” or “danger” |
| Ogwo v Taylor (1988) | The fireman was successful under common law negligence/not under the 1957 Act/the injury was not caused by a defect in the premises but by the occupier’s negligent electrical work. |
| Ward v Tescos Stores (1976) | Dangers on the premises/the occupier’s failure to deal with the danger within a reasonable time caused the injury or damage, are breaches of the common duty of care/yoghurt was spilt on the floor and not cleared up within a reasonable time |
| "visitor" | anyone who would have been an invitee or licensee at common law (s.1(2)) and thus includes anyone with express or implied permission to be on the property. |
| Robson v Hallett (1967) | Implied permission given very wide meaning/include anyone who wishes to communicate with the occupier/unless person knows or ought to have known that he has been forbidden to enter usually through a notice on the gate saying “no canvassers” or similar. |
| s.2(6) | visitor also includes anyone who enters the premises under a right conferred by law and does not need the occupier’s permission to enter. |
| visitor can lose his visitor status and become a trespasser (and hence no longer be protected by the 1957 Act) in a number of situations: | Where visitor/expressly or impliedly warned by occupier not to go/ deliberately goes into an area of premises he knows is not covered by invitation/remains on premises after permission has expired/uses the premises for a purpose alien to the invitation |
| Anderson v Coutts (1894) | falling over a cliff on the occupier’s property by climbing over railings and ignoring a warning notice |
| Pearson v Coleman Brothers (1948) | the limits of the permission must be made clear especially where children are concerned/held that she was still a visitor as limitations as to permission where to go had not been properly explained |
| Lewis v Ronald (1909) | tradesman’s employee went into a dark area of the premises not included in the invitation and falls down stairs. |
| Stone v Taffe (1974) | limits of permission must be clearly brought to visitor’s attention/pub manager to allow customers to drink after certain hours/not brought to plaintiff drinker’s attention/hence plaintiff remained a visitor to the property/could claim under the 1957 Act |
| The Calgarth 1927/Lord Justice Scrutton stated | “When you invite a person into your house to use the staircase you do not invite him to slide down the banisters”. |
| R v Smith and Jones [1976] | held that as they had entered the premises with the intention of stealing property, they had exceeded any invitation given and hence were trespassers as soon as they entered the house. |
| Common Duty of Care | Act specifically allows the occupier to extend, restrict, modify or exclude his common duty of care |
| Common Duty of Care(s.2(2)) | “duty is to take such care as in all the circumstances of the case is reasonable” to see that the visitor is reasonably safe in using the premises for the purpose for which he is invited or permitted to be there. |
| the duty is towards | the visitor as opposed to a visitor/Thus the standard of care required of the occupier will vary depending on whom the visitor is. |
| s.2(3)(a) | “the occupier must be prepared for children to be less careful than adults”/Thus a verbal or written warning might discharge the common duty of care where adults are concerned but not necessarily for children. |
| Allurement | Generally speaking if there is a hidden danger on the premises that can allure or entice a child/then liability will be proven/unless it can be shown that the occupier did all that was reasonable to comply with the common duty of care. |
| Glasgow Corporation v Taylor (1922) | the defendant owned a park which included a bush of poisonous berries. This was not fenced off and no warning notices were available. The plaintiff a boy of 8 died when eating the berries and the defendants were held liable |
| Jolly v Sutton London Borough Council | defendant council left derelict upturned boat on the riverside/boys in their early teens attempted to jack up the boat/one was severely injured/boat was held to be an allurement to children/council were liable in not discharging their common duty of care |
| Role of parents | can only assist the occupier where the children are very young and a reasonable person would consider that the children would be properly supervised. |
| Phipps v Rochester Corporation | the claimant was a 5 year old boy supervised by his sister aged 7/held that the occupier could assume that the boy would have been properly supervised by his parents and refused to find the occupier liable. |
| s.2(3)(b) | "occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it"/Thus if an independent contractor is working on the occupier’s property he is responsible to satisfy himself |
| Roles v Nathan [1963] | held to be part of the special risks associated with being a chimney sweep/occupier was held not liable for the deaths. |
| Ogwo v Taylor 1988 | fireman injured due to negligence of occupier who started a fire; fireman succeeded in common law negligence |
| s.2(4)(a) | an occupier who gives a warning to the visitor is not absolved from liability unless the warning was sufficient to enable the visitor to be reasonably safe when using the premises. |
| Cotton v Derbyshire Dales | If the danger was so obvious a warning might not be necessary for the visitor to be reasonably safe |
| Darby v National Trust (2001) | held that the failure of the defendant to erect signs saying "Danger No Swimming" near the scene of the accident was not negligence as the risks were so obvious. |
| s.2(4)(b) | if visitor injured due to the act of an independent contractor/occupier is not liable/if in all the circumstances he/(i)acted reasonably in entrusting the work to an IC/ |
| (ii)has taken such steps as is reasonable to satisfy himself that the IC was competent and/(iii)had satisfied himself that that the work had been properly done | |
| Haseldine v Daw | occupier was held not liable as he was fully reliant on the skill and knowledge of the independent contractor which on paper was competent to do the work |
| Woodward v Mayor of Hastings [1954] | a teacher as an employee of the occupier could easily have checked the state of the step and thus the occupier was liable. |
| S.2(1) of the 1957 Act permits | the occupier to exclude or modify the common duty of care in as far as the law allows. |
| The Unfair Contract Terms Act 1977 s.2(1) | prevents death and personal injury being excluded by any contract term/only applies to businesses/thus private owner could fully restrict or exclude his liability by an appropriately worded notice/though not for deliberate or reckless conduct |
| s.2(5) specifically mentions | consent (volenti)/Thus if the visitor wilfully consents to undertake a risk then the occupier can avoid liability/Simms v Leigh Rugby Football Club |
| The Act does not specifically mention | contributory negligence however judges have frequently applied this defence in 1957 Act cases eg Stone v Taffe [1974] |
| Prior to the 1984 Act | the duty owed to a trespasser was one of common humanity. |
| British Railways Board v Herrington (1972) | duty of common humanity lower than the common duty of care under the 1957 Act/basically owed when reasonable person knowing the facts actually known by occupier/would know about the presence of trespasser/and take reasonable steps to eliminate of danger |
| s.1(3) | generally adopted the common humanity approach/states that a duty of care is owed by an occupier to a non-visitor where the occupier/a. is aware of the danger or has reasonable grounds to believe that it exists/ |
| b. knows or has reasonable grounds to believe that the NV is in the vicinity of the danger or may come into the vicinity of the danger/c. the risk is in all the circumstances of the case he may reasonably be expected to offer the NV some protection | |
| "occupier"/"visitor" | the same meaning as under the 1957 Act/though "occupier" is not specifically defined in either statute and the common law/The test in Wheat v Lacon (1966) has to be used |
| liability under the 1984 Act | will only be proved where there is a defect or danger in the premises |
| Revill v Newberry [1996] | when the claimant trespasser tried to enter the shed the occupier fired a warning shot through the door injuring the trespasser/1984 Act could not apply here as there was no defect in the premises/the claim would be under negligence or intentional torts |
| the duty of care under s.1(3) paragraphs a and b | partly subjective (what the occupier actually knew)/party objective (whether he had reasonable grounds for believing the danger exists)/no requirement for constructive knowledge (where he ought to have known about danger/hence no duty to carry out inspect |
| Swain v Puri [1996] | specifically rejected the constructive knowledge approach/S.1(3)(c) appears to be objective in nature. |
| s.1(4) | occupier to take such care as is reasonable in all the circumstances of the case/to see that the non-visitor does not suffer injury on the premises/by reason of danger concerned/ |
| standard of care | if the occupier is aware of child trespassers then the standard of care is likely to be higher than with adult trespassers/However, even if there is danger to children the occupier's duty is to do what is reasonable. |
| appears to be wholly objective which differs from the standard in Herrington/which was partly subjective and required the court to consider the resources of the occupier in determining reasonableness. | |
| Platt v Liverpool City Council (1997) | held that whilst a duty of care was clearly owed under s.1(3) there was no breach of duty under s.1(4). |
| S.1(5) states | duty owed under s.1(3) can be discharged by taking such steps as are reasonable in all the circumstances of the case/ to give warning of the danger concerned or to discourage person from incurring the risk/ |
| warning though should both draw attention to the existence of the danger and warn of it. | |
| Westwood v Post Office [1973] | notice on a door stated "Only authorised attendant is permitted to enter" held not sufficient warning of a danger/arguably authority for saying that the warning must draw attention to the particular danger to discharge the duty under the 1984 Act |
| s.1(6) Occupiers' Liability Act 1984 | the defence of volenti or consent which is expressly preserved |
| Ratcliffe v McConnell [1999] | warning notice properly drawing attention to the danger is likely to invoke the defence of volenti/group of drunken students decided to break in and go for a swim/notice warning about diving was ignored/held that the defence of volenti succeeded and the o |
| Tomlinson v Congleton Borough Council [2004] | local council tried to prohibit swimming in the lake by putting up "Danger, No Swimming" signs/decision to plant vegetation to prevent access though the planting not yet started/HL reversed CAs judgment/held occupier not liable under the 1984 Act/defence |
Created by:
kudoak