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occupiers liability
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- 1OLA 1957prior to statute extent of liability owed by an occupier depended upon nature of relationship with person injured- OLA 1957 abolished this in favour of;
1) lawful visitors (protected by act)
2) all others (not protected but now are in 1984 act) - 2what is an occupier?-no statutory definition of an occupier so CL taken a broad view: 'a person who exercises an element of control over premises.'
-includes physical/legal control of premises (Harris v Birkenhead Corp)- council occupier of an empty house even though it had taken physical possession as it had served a notice of compulsory purchase on owner thus was in legal control of prop. - 3what are the premises?-the definition of premises is wide and covers not only land/buildings but also 'any fixed or moveable structure, including any vessel, vehicle or aircraft' S1(3) OLA 1957
- 4who is a visitor? -those with express permission3 categories of people considered to be lawful visitors;
1) those with express permission: can be complicated if visitor behaves in a way that exceeds the extent of permission that has been granted. The occupier has right to limit the way in which a visitor behaves whilst on his premises, and a visitor who deviates from this will be a trespasser. - 5who is a visitor? -those with implied permission- involves those who have not been prohibited from entering but have not been explicitly invited (e.g. delivery man)
-subject to limitations: if exceeded render the person a trespasser but it can be more complicated to determine the boundaries of implied permission. (e.g. entry into parts of property that have no relation to purpose of the visit)
-if an occupier knows that his land is used by trespassers but does nothing to prevent them from entering this can amount to implied permission.
-Lowery v Walker - 63) those with a right to enter-law gives rights of entry to certain categories of people which render them within the definition of lawful visitor irrespective of the occupier of the land; e.g. police under warrant.
- 7duty of care-OLA S2(2): CL DoC is to take such care as in all the circumstances of the case is r/able to see that the visitor will be r/ably safe in using the premises for which he is invited or permitted by the occupier to be there.'
-standard of care expected resembles that applied in negligence. - 8distinction from normal principles of negligence-occupier is empowered by statute to determine boundaries of his liability
-occupier may extend, restrict, modify or exclude his duty to visitors by agreement (as he controls this a visitor who acts contrarily becomes trespasser)
-duty to ensure that visitor is not injured whilst on premises- not same as duty to ensure premises are safe so duty may be satisfied if occupier displays warning signs or cordons off dangerous areas. - 9situations in which common duty of care differsQ- what categories of visitors attract a deviation from the common duty of care?
children- an occupier must be prepared for children to be less careful than adults
skilled visitors- an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it - 10childrenalthough section warns that children are less careful than adults, implying that greater care may be needed to protect them from harm, case law has sought to balance resp between occupiers and parents.
-Phipps: D entitled to assume parents would take primary resp for safety/control of children.
-policy behind this was not socially desirable for parents to shift burden of protecting their children from harm from themselves to landowners.
-if land holds concealed dangers tempting children likely landowner owes greater duty- Glasgow Corp v Taylor
-older children may not qualify as should have known better - 11skilled visitorslaw expects skilled visitors whose expertise gives them greater awareness of risks of harm than ordinary visitor to take precautions to protect themselves.
-occupiers still have duty to protect them but not in the sense that skilled visitors should have known due to expertise - 12warning signsfollowing factors should be taken into account when considering whether a warning sign was enough to enable a visitor to be r/ably safe;
-how specific was the warning?
-how obvious was the danger? hidden dangers necessitate greater efforts to call attention to them- Staples
-is sign combined with other safety measures?
-what sort of visitor is targeted? (e.g. for children) - 13liability for independent contractors3 circumstances where occupier liable for harm caused to visitor by work of independent contractor;
1) unr/able to entrust work to IC (if occupier could have done it himself)
2) occupier failed to take r/able steps to ensure work was up to appropriate standard
3) Maguire: did occupier ask for reference/check contractor qualified etc
-occupier only expected to do what is r/able when checking work of IC
-if straightforward occupier expected to see defects (woodward)
-if technical occupier not expected to notice (haseldine v daw & son) - 14defences1) volenti- visitor consented to risk of injury as he knew/understood risks
2) CN- under law reform (CN) act damages awarded to C will be reduced on case by case basis - 15OLA 1984extended to protection of trespassers and people lawfully exercising private rights of way
-scope of protection is narrower than 1957 act in relation to lawful visitors as occupier may be lianle for injuries only, no damage to prop. - 16who is a trespasser?someone who goes onto land without invitation of any sort and whose presence is unknown or practically objected too.
- 17duty of care3 conditions must be satisfied;
1) occupier must be aware of danger or have r/able grounds to believe it exists
2) he knows or has r/able to believe trespasser is in vicinity of danger
3) risk is on against which he may be r/ably be expected to offer some protection - 18young v kent CCcourt said if trespasser had been a 12yr old rather than an adult, C wouldnt have been responsible.
-in this case child was injured falling from skylight- CC owned premises and found liable on basis aware light was flimsy and that children used roof.
-liability reduced by 50% for CN by C - 19keownCA overturned that
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- Fichas sobre occupiers liability , creado por holmull el 06/05/2015.
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