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Occupiers Liability - Coggle Diagram
Occupiers Liability
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Lawful Visitors & OLA 1957:
visitor is someone who has express or implied permission from occupier to enter their premises - permission can be implied from the circumstances e.g. people delivering goods to a property
s2(1) OLA 1957 - duty of care that is owed by an occupier to the visitor
if the duty is breached then the claimant can bring action for personal injury and damage to property - not for pure economic loss. this means that a claimant cant bring a successful claim if the only loss suffered is loss of profit or a reduction in value of an item
standard of care required by the act is set out in s2(2): occupiers have a duty towards visitors to take care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes which he is invited
this is called the common duty of care and requires the occupier to make visitor safe - occupiers are not required to provide absolute safety as this would be impracticable - have a duty only to take reasonable care to make the visitor safe which can be dome by giving warning
cases such as wood v smith and western restaurants confirm that the occupier doesnt have to make premises absolutely safe - in this case, claimant fell at a restaurant because of unevenness and gaps in old floorboards - claim failed because minor defects that are not dangerous need not be rectified by the occupier
Children:
s2(3)(a) OLA 1957: an occupier must be prepared for children to be less careful than adults. if occupier allows a child to enter the premises then the premises must be reasonably safe for child of that age
range of cases that illustrate what the occupier needs to do to make a child visitor safe - occupier has to consider whether the premises are safe for a child of a particular age and whether the child is accompanied and the provision of warnings
an occupier will be allowed to assume that very young children will be accompanied by someone supervising them - can reduce degree of care required by occupier as seen in Phipps v Rochester Corporation
People carrying out a trade or calling:
s2(3)(b) OLA 1957 sets out law relating to someone who is exercising their common calling on the occupiers liability - this refers to a person whom the occupier has invited on the premises to carry out a job and who has been injured as a result
section states:
an occupier may expect a person, in exercise of their calling, will appreciate and safeguard against special risks that are usually connected with it
Liability for torts of independent contractors:
independent contractors are employed by an occupier to do specific, usually specialist, work and s2(4)(b) OA 1957 is relevant section when a person is harmed by defective work that the independent contractor has carried out
occupier will not be liable for damage caused to visitor due to faulty execution of work by an independent contractor as long as:
- it was reasonable to entrust the work to an independent contractor
- the occupier had taken reasonable care to see that the independent contractor was competent
- the occupier had taken reasonable care to see that the work had been done properly
there are a number of points to make in relation to this section. first it will only apply where there is evidence of faulty execution of...construction, maintenance or repair - if there is no evidence of this, the normal negligence principle applies
the more technical work, the more likely it will be reasonable to appoint an independent contractor. if occupier doesnt have any technical skill most jobs that need a technical ability will be regarded as reasonable for appointment of independent contractor
generally - in order to fulfil the element of competency, occupier needs to do very little; checks with local trade associations, obtaining references or checking insurance will be sufficient - been suggested that if the occupier is a company then more checks would need to be made
the occupier will be liable if they fail to take precautions for extra hazardous activities, e.g. failing to check that the independent contractor has the relevant public liability insurance and risk assessment for the activity
guidelines about what is expected from an occupier regarding an independent contractors insurance were laid out in Gwilliam v West herts NHS Trust
Exclusion of liability & defences:
defendant can avoid liability under both acts - OLA 1957 states that duty of care can be restricted, modified or excluded - defences are same for other torts
Exclusion of liability s2(1):
duty of care can be extended, restricted, modified or excluded - done by way of contract or notice, however the Unfait Terms act 1977 will apply if premises are being used for business
however an occupier cant exclude liability for death or personal injury caused by negligence - if an occupier tries to exclude liability for property damage, the reasonableness test will apply
there is one case where there was no liability for death - White v Blackmore
Contributory Negligence:
Law reform act 1945 applies - where visitors failure to take reasonable care for own safety is a cause of harm suffered, amount of damages awarded will be reduced
Warnings s2(4)(a):
if a visitor is given sufficient warning of a danger to make them reasonably safe, the occupier will not be liable for any damage that the claimant suffers because of danger
positioning, size and wording of sign are vital - warning must refer to precise risk or danger that hte visitor would be facing
however in some instances the danger is so obvious that there is no need for a warning sign - cotton v derbyshire dales district council - in contrast a warning would have been useless in Rae v Mars Ltd given that the hole in the ground was immediately inside the door
Volenti non fit injuria (consent) s2(5):
common duty of care doesnt impose upon an occupier any obligation to take care if the risk of harm has been willingly accepted by the visitor
in contrast, a visitor doesnt always willingly accept a risk just because the occupier has placed a warning sign on the premises - sign must state the type of harm that may occur and it has to be clear
Definitions:
before 1957 - law of negligence covered liability for harm caused by dangerous premises.
it was difficult to apply because there were different levels of protection for different people
there was a potential for injustice especially in relation to children
OLA 1957 was passed to make law consistent and less complex - but only provided protection for visitors only
OLA 1984 was a way of combatting the problem in relation to trespassers who were inured even though they have more limited protection
liability - only be imposed on defendant if the injury or damage is the result of:
- condition of the land
- dangerous conduct that is a continuing source of danger
Occupier?
neither act gives a definition of occupier - lord denning provided a definition in Wheat v Lacon
the occupier doesnt have to be in physical possession as illustrated by Harris v Birkenhead Corporation
Premises?
both acts impose liability on 'occupiers of premises'
premises are defined in s1(3) OLA 1957 as including land, buildings and 'any fixed or movable structure'
definition includes any vessel, vehicle or aircraft
it is a very wide definition and case law shows that if can include: a lift, a park, and a boat
this recognises that people who occupy land (including buildings on the land) have a duty of care towards others who come onto the land
duty relates to the dangerous condition of the land rather than its use.