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OCCUPIER'S LIABILITY (OLA 1957 (LIABILITY FOR INDEPENDENT CONTRACTORS-…
OCCUPIER'S LIABILITY
OLA 1984
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CONTENT OF DUTY OF CARE- must be proved that the occupier failed to take such case as is reasonable in all circumstances to see that the claimant does not suffer personal injury on the premises- S1(4)
Standard of care- court will need to consider, age of the claimant/nature and character of entry/utility of the occupiers conduct/precautions necessary to guard against risk
DEFINING TRESPASSER- someone who goes on land without invitation of any sort and whose presence is either unknown to the occupier or if known is objected to
OLA 1957
DUTY OF CARE- S2(2)- Occupier must take reasonable care to see visitor will be reasonably safe in using the premises for the purposes they are there
Skilled Visitors- S2(3)(b) occupies can assume skilled visitors will have greater awareness of risks and precautions
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Children- special visitor under S2(3)(a)- expected to be less careful than adults and greater care must be taken to keep them from harm.
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LIABILITY FOR INDEPENDENT CONTRACTORS- normally not possible to attribute contractor actions to employer but under S2(4) liability may arise
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DEFINING LAWFUL VISITORS
Express Permission- those who have been invited. Occupiers may limit the extent of the invite. Visitor who deviates will be considered a trespasser and lose protection under the act
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Implied Permission- presence is assumed to be unobjectionable to the occupier. Permission may be limited. Occupier knows land is being regularly trespassed an does nothing to prevent- implied permission
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Lawful Right - lawful right of entry regardless of the occupiers wishes under S2(6) e.g. police and firemen
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DEFINING OCCUPIER- act does not provide a definition but simply a party who has sufficient control of the premises to be able to foresee that visitors coming onto the premises could be injured by the state of the property- defined in common law
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WARNINGS
OLA 1957- S2(4)(a) a warning may fulfil an occupiers duty but only where they enable the visitor to be reasonably safe
OLA 1984- duty of care owed to the person "other than a visitor" can be fulfilled by a suitably worded warning S1(5). A warning sufficient to discourage the claimant from taking a risk will suffice
DEFENCES
OLA 1984
VOLENTI- S1(6) is a defence. Trespasser who enters the premises with knowledge of the risk of harm will be considered consenting to the risk
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OLA 1957
CONTRIBUTORY NEGLIGENCE- not specifically mentioned but implied at S2(3)- damages may be reduced where visitor fails to take reasonable care for their own safety
EXCLUSION- can occur sometimes if the occupier extends, excludes, restricts or modifies the duty of care
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