OCCUPIER'S LIABILITY
OLA 1984
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
LIABILITY FOR INDEPENDENT CONTRACTORS- normally not possible to attribute contractor actions to employer but under S2(4) liability may arise
DEFINING LAWFUL VISITORS
DEFINING PREMISES- S1(3)(a) notes that not just land and buildings are considered premises
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
WARNINGS
DEFENCES
DUTY OF CARE- comes into existence- occupier owes a duty of care to persons other than visitors
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)
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 1984
OLA 1957
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
CASE: WHEAT v LACON [1966]
Land/ buildings/ structures (both fixed and movable/ vessel, vehicles and aircrafts
CASE: WHEELER v COPAS [1981]
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
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
Lawful Right - lawful right of entry regardless of the occupiers wishes under S2(6) e.g. police and firemen
CASE: LOWERY V WALKER [1911]
CASE: MAGUIRE v SEFTON COUNCIL [2006]
Skilled Visitors- S2(3)(b) occupies can assume skilled visitors will have greater awareness of risks and precautions
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.
CASE: PHIPPS v ROCHESTER CORP [1955]
CASE- GENERAL CLEANING CONTRACTORS V CHRISTMAS [1953]
Occupier failed to take reasonable steps to ensure the independent contractor was competent
Occupier has failed to take reasonable steps to check the work of the independent contractor
Unreasonable to entrust work to an independent contractor in the first place
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
VOLENTI- S2(5) occupier will not be liable for risks willingly taken
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
CONTRIBUTORY NEGLIGENCE- silent in the Act if this can be used as a defence
EXCLUSION- silent int he Act if this can be used a defence but policy would suggest it can be
Occupier knows or has reasonable grounds to believe the other is in the vicinity of the danger or may come into the vicinity- tested subjectively
The risk is one agains the occupier can reasonably be expected to offer the other some protection- S1(3) - tested objectively
Occupier is aware of the danger or has reasonable grounds to believe it exists- tested subjectively
CASE: REVILL v NEWBERY [1996]
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