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Occupier's Liability Act 1995 (Common Law entrants (2. Invitees …
Occupier's Liability Act 1995
Introduction
Occupier's Liability arises where a person seeks to recover damages against the occupier of land for injuries sustained by him/her while on said land
Distinction
State of Premises: governed by Occupier's liability act
Activities on the premises: governed by common law
Important- those that would be classified as a 'trespasser' or 'recreational user' will usually ry to base a case on an actiivty rationale, since there is a higher duty of care owed by the occupier under the common law rules in such circumstnaces
Historically, the law offered greater protection to the occupiers of property than to thse who entered upon it
Common Law entrants
2. Invitees
Covered persons the land occupier invited onto his property
The duty owed to such persons was to warn inviteesof the dangers that were known (or ought to have been known) to exist on the land
3. Licensees
These were entrants whose presence was permitted by landowner by the owner did not obtain any material benefit from there being there
Duty owed was to ensure that there was no concealed dangers upon his premises
1. Contractual Invitees
These were entrants who entered a premises or property under the terms of a contract
Obligations placed on property owner re entrant governed by terms of contract
where there was no specific mention of the obligation, the courts inferred a duty to take reasonable care re any potential contractual invitees
4. Trespassers
These were entrants who entered a property in absence of an invitation or permission from the occupier of the property
Duty owed: Had been held to be not to act intentionally or recklessly to injure them where their presence on the land was known or ought reasonably to have been known to the occupier
HOWEVER:
McNamara v ESB
: SC held- duty owed to the trespasser should be more onerous than not acting in reckless sdisregard for person or property
An occupier owed Duty to trespassers with whom he could
reasonably foresee
and that duty was to take
such reasonable care as the circumstances demanded
HELD: D liable as it knew of the interest of local children in their electricity substation, danger was foreseeable and reasonable steps had not been taken to keep P out since the fence was dilapidated and allowed access
SIGNIFICANT- appeared to raise trespassers to exalted position in the hierarchy of entrants- owed greater duty than invitees or licensees
Foley v Musgrave Cash and Carry: criticized the 'somewhat artificial' categorization of entrants
Stating duty was to takwe reasonable care in call the circumstances to see that the premises were reasonably safe for invitee
Rooney v Connelly
: ALthough decision applied the old system when dealing with a licensee- would appear to have been decided per incuriam
Better view- now seem to be that *reasonably foreseeable trespassers, invitees and licensees are all owed the same DOC under common law rules
and that duty is the ordinary one to take reasonable care in all the circumstances*
Definitions
Danger
:
Liability under the Act is based on a danger which is directly attributable to the 'state of the premises'
Anything other than the state of the premises, the provisions of the Act will not apply
Occupier
For the purposes of establishing liability, an occupier is defined in terms of control over the state of the premises
Liability is therefore imposed to the extent that it is reasonable for that person to owe a duty towards an entrant in respect of a particular danger
May be more than one occupier: duty owed will be based on degree of control and the class of the entrant in question
In respect of occupier being employer and injured an employee
s8 provides that the additional common law duties owed as an employer are not affected by the Occupier's Act
Damage
:
Includes damage to property, injury to animals, loss of life, disease or impairment of a physical or mental condition
Covers personal as well as psychological injury
Definition not exhaustive
Premises
Given v broad definition
Includes land and water as well as fixed or movable structures and various means of transport
-Courts have upheld this broad definition for purpose of imposing liability
Haseldine v Daw
;
Wheeler v Copas;
and
Bunker v Charles Brand
: Courts interpreted the definition as incluidng such structures as lifts, ladders, diving boards, scaffolding and even large digging machines for the purposes of imposing liability
Entrants onto land
Visitor
Trespasser
For the purposes of the act, the P must have
a) entered onto the D's land
b) when doing so entered it under one of the following headings
Distinction important as Act provides varying levels of liability re each category
Recreational User