GoConqr has a new look! Let us know what you think.

Sign up free

Flashcards

Tort - Occupier's Liability

Sam Grimley Tort Law English 68 cards

Cards in this deck (68)

  1. 1What are the statutes governing occupier's liability, and what is the difference between them?Occupiers' Liability Act 1957 and 1984. The 1957 Act deals with authorised 'visitors' and the 1984 Act deals with unauthorised persons, or 'trespassers'. The 1984 Act deals only with personal injury. It should be noted that the Acts do not replace the common law but exist alongside it. In practice, claims will usually be pleaded both under the statute and at common law.
  2. 2What is the fundamental difference between a case under occupiers' liability, and a general negligence tort?A general negligence tort often refers to 'an activity' (or omission thereof), whereas OL refers to the condition of premises.
  3. 3Is it the visitor or the premises that must be safe?OLA 1957 s2(2) ‘the VISITOR will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there’
  4. 4An ‘occupier’ does not simply mean the person in physical occupation. What does it mean?A person who has a sufficient degree of controlover the premises so as to justify the imposition of a duty upon them (Wheat v Lacon)
  5. 5Defining 'occupier'.Wheat v Lacon [1966] Facts: The defendants were the owners of a pub. They granted Mr and Mrs Richardson, the manager and his wife, a licence to use the top floor of the premises for their private accommodation and to take in paying guests. The plaintiff and her husband were paying guests. The husband was fatally injured while using the staircase which had a faulty hand rail. He could not see this as the area had no lighting (the light bulb was missing). The question arose as to who was in occupation of the stairs on which the plaintiff was injured, for the purpose of a claim in occupiers’ liability.
  6. 6Wheat v Lacon contHeld, Denning: an occupier is 'a person who had a sufficient degree of control over premises to put him under a duty of care towards those who came lawfully onto the premises'. 'wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an "occupier” …. In order to be an "occupier" it is not necessary for a person to have entire control over the premises….. He may share the control with others. Two or more may be "occupiers"'
  7. 7In Wheat v E. Lacon, Denning gave 4 types of relationship a landlord might have with a tenant, and to what extent the landlord might be considered an occupier on account of the 'control' he had in each. What are these 4 scenarios?1. Landlord has let premises by demise to a tenant: parts with all control over them. No control, save only to the tenant under the agreement to repair.
    2. Owner let floors or flats in a building to tenants, but did not demise the common staircase other parts. Control of all parts not demised. Under a duty in respect of those retained parts only.
    3. Owner did not let premises to a tenant but only licensed a person to occupy them on terms which did not amount to a demise. Regarded as being sufficiently in control of the structure to impose on him a duty towards all persons coming lawfully on to the premises. ...
    4. Owner employed an independent contractor to do work on premises or a structure, the owner was usually still regarded as sufficiently in control of the place as to be under a duty.
  8. 8Can contractors ever be regarded as 'occupiers' in law?It is possible for independent contractors to be occupiers or to be dual occupiers.
    AMF International Ltd v Magnet Bowling Ltd [1968]
    Held: a contractor, as well as the owner, was held to be the occupier of the whole building although part of the building was separated by a screen beyond which the contractor went only to attend to heating and lighting.
  9. 9What happens if no one really has control over who accesses property in question? Case.Bailey v Armes (1999)
    Facts: When eight years old, Bailey was injured when he fell from a sloping roof behind premises used by Cullens Holdings plc, as a supermarket store. As a result of the fall he sustained serious head injuries. He commenced proceedings to recover damages against two defendants: Mr and Mrs Armes who occupied the flat overlooking the flat roof of the supermarket (and who had, on numerous occasions, allowed their own children to play on the flat roof, accessing it from their own roof), and against Cullens, as occupiers of the premises. The question was who was the occupier for the purpose of the claim under the OLA 1957, applying Lord Denning’s test from Wheat.
    Held: Neither the Armes or Cullens had sufficient 'control' over who used the roof to be deemed occupiers. Claim failed.
  10. 10In Bailey, the judgment refered to Salmond on the Law of Torts (10thed.) for a definition of control. It is helpful.‘...Generally speaking, liability...is based on occupancy or control, not on ownership. The person responsible for the condition of the premises is he who is in actual possession of them for the time being, whether he is the owner or not, for it is he who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons.’
  11. 11Dual occupiers involving a promenade.Collier v Anglian Water Authority [1983]
    Facts: the claimant was injured whilst walking along a seaside promenade.
    Held: the claimant had a claim against both the water board and the local authority. Both had control over some aspect of the promenade.
  12. 12It is possible that a claimant may be a visitor to one occupier and a trespasser to another. Case.Ferguson v Welsh [1987]
    Facts: a council had accepted a tender from Mr Spence for the demolition of a building on a site owned by them. The invitation to tender contained a clause prohibiting sub-contracting without the council’s consent. Without seeking this consent, Mr Spence arranged with the Welsh brothers for them to complete the demolition works and they, in turn, offered the claimant a job on the demolition. Whilst carrying out the work, the claimant sustained serious injuries which left him partly paralysed. He sued Mr Spence, the Welsh brothers and the council.
    Held: the claimant had no claim against the council either under the OLA 1957 or common law. Lord Goff stated that: ‘I, for myself, can see no difficulty in law in reaching a conclusion that Mr Ferguson may have been a lawful visitor in relation to Mr Spence but a trespasser in relation to the Council’ (pages 1562 –1563). It is also possible that different occupiers may have responsibility for different parts of the premises or different dangers.
  13. 13Is it possible for an owner to be deemed an occupier, even if they have never 'taken possession' of the property? Why? Case.Yes. Because they could have taken steps to secure the property.
    Harris v Birkenhead [1976]
    Held: the defendants, a local authority, were held to be occupiers even though they had never exercised control over the property
  14. 14What does 'property' mean? Is it just land? Buildings? Which section of the act?s.1(3)(a) OLA 1957 (s.1(2) OLA 1984 defines premises in the same way as the OLA 1957)
    '...any fixed or moveable structure, including any vessel, vehicle or aircraft.’
    In Wheeler v Copas [1981] the premises included a ladder.
  15. 15Does an occupier owe an automatic duty to a visitor? What is a visitor?The OLA 1957 provides that the occupier of premises owes an automatic duty to their lawful visitors, i.e. persons lawfully on the property.
  16. 16A vistor is someone with permission to enter premises. What are some of the types of permission that can exist? Try and get 5.1. Express permission,
    2. implied permission,
    3. permission by lawful authority,
    4. contractual permission,
    5. the doctrine of allurement (whereby children are attracted onto land by things there that adults may not find so attractive, such as food, boats or machinery, although this doctrine is now less necessary given the enactment of the OLA 1984 in relation to trespassers).
  17. 17There are 3 ways in which express permission can be limited. What are they?by time, by area and by purpose
  18. 18Give a case that explains how a limitation on time must be communicated.Stone v Taffe [1974]
    Facts: The second defendants were the owners and occupiers of a public house which was run for them by a manager, the first defendant. The manager permitted a social function to be held in an upstairs room on the premises and allowed guests to remain on the premises after closing time. On leaving the premises at about 1 am the plaintiff and her husband found that the staircase was unlit. While descending the staircase in the dark, the plaintiff's husband fell and sustained injuries from which he subsequently died. The question, among other things, was whether the plaintiff’s permission to be on the premises had been limited by time. In other words, would the plaintiff be viewed as a visitor or trespasser?
    Held: The defendant had not clearly communicated that the permission ended at the official closing time. While permission can be limited by time, any such limitation must be communicated clearly to the purported visitor.
  19. 19Express permission can be limited by area. Signage must be clear. A case involving a child in a circus.Pearson v Coleman [1948]
    Facts: a child accidentally found herself in the animal enclosure at a circus where she was attacked.
    Held: Because there were no signs or banners indicating this was a private area she was not considered a trespasser but a licensee.
  20. 20Express permission can be limited by area. Signage must be clear. A case involving a car and a pond.Darby v National Trust [2001]
    Facts: there was an inconspicuous sign in a car park saying that there should be no bathing or boating in the pond. This car park was not next to the pond and there was a lot of other information on the sign. The defendant argued that Mr Darby was a trespasser as he was not permitted to be in the pond.
    Held: The defendant had not done enough to turn him into a trespasser.
  21. 21Express permission can be limited by purpose. A case involving a lake.Tomlinson v Congleton [2003]
    Facts: Man dived into a lake, and injured himself. Sinage made it clear to the claimant that the lake was to be used for canoeing, fishing and windsurfing only.
    Held: By swimming in the lake, Mr Tomlinson, was a trespasser not a visitor.
  22. 22Give a case that defines 'trespasser'.Robert Addie v Dumbreck [1929]
    Facts: The respondent in this appeal was the father of a four year old boy who was killed when he was crushed in the wheel of a haulage system belonging to the appellant colliery company. The field in which the wheel was situated was surrounded by a hedge,but it was well known that children would enter the field to use it as a play area. The colliery company were aware of this fact and warned children out of the area from time to time, but their warnings were disregarded. The wheel itself was inadequately protected and was attractive to children. The issue was whether the child would be seen as a visitor or trespasser.
    Held: "The trespasser is he who goes on the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to.” The boy was viewed as a trespasser and as such his father had no remedy in law for his loss. The claimant would have some limited protection today.
  23. 23Give an everyday example of 'implied permission' to enter premises.If your letterbox is on your front door at the end of a garden path, the postman has implied permission to walk down your path.
  24. 24Give a case demonstrating implied permission involving wild horses.Lowery v Walker [1911]
    Facts: the public had been making a short cut over the defendant’s land for 35 years (the defendant was aware of this and took no legal action to prevent it).
    Held: They were held to have an implied licence when one of them was attacked by a wild horse whilst walking across the land.
    Note: this case was decided before the OLA 1984 when trespassers were not owed a positive duty of care by occupiers. Pre-1984 cases on implied permission are still good law but should be treated with caution as the courts tended to use implied permission to turn a trespasser into a visitor to accord them rights.
  25. 25In contrast to Lowery, if an occupier takes reasonable steps to prevent the public entering his land, there will be no implied permission. Case.Edwards v Railways Executive [1952]
    Facts: A spot on the railway was used as a shortcut on a regular basis. The fence was repaired whenever it was reported to have been damaged. However, it would be repeatedly beaten down by people wishing to use the railway as a shortcut. The fence was in good repair the day of the incident.
    Held: The claimant did not have implied permission as the defendant had taken reasonable steps to prevent people using the railway as a shortcut (and was therefore a trespasser).
  26. 26Implied permission can extend to particular activities only, and not to others. Give a case involving a taxi fare.Harvey v Plymouth City Council [2010]
    Facts: The claimant was running away from a taxi to avoid paying the fare when he tripped on the defendant’s land.
    Held: When the council licenses the public to use its land for recreational purposes it consents to normal recreational activities, not all foreseeable activities regardless of how reckless they are, so the claim failed. Harvey had an implied licence for general recreational activity but not for reckless activities.
  27. 27Give an example of the doctrine of allurement involving poisonous berries.Taylor v Glasgow City Council [1922]
    Facts: a child of seven died after eating poisonous berries from a bush on the defendant's premises.
    Held: Liability was established. The bush was an allurement and as such should have been fenced off.
    Note: This doctrine though is largely redundant now due to the enactment ofthe OLA 1984.
  28. 28Lawful Authority. Under s.2(6) OLA 1957 some persons can enter premises as lawful visitors. What are some examples?Police officers with a warrant, gas board officials.
  29. 29The test for assessing whether a breach has occurred is the same as in standard negligence claims. What are the elements in the quadrant?Likelihood of damage / potential severity / cost of precautions / public utility
    Tomlinson v Congleton BC [2004]
  30. 30Give a case in which a breach was not found, involving a patch of water next to a jacuzzi.Tedstone v Bourne Leisure Ltd [2008]
    Facts: a woman slipped on a small patch of water on her way from the Jacuzzi to the swimming pool.
    Held: The defendant had taken reasonable care to ensure she was reasonably safe; regular inspections had been carried out and the patch of water had not been there very long. A reasonable occupier would not have done more–minute by minute inspections could not be required.
  31. 31Breach: Once a duty is established, the principles for establishing a breach derive from the common law tort of negligence. What is the standard of care?The occupier has a duty to act as a reasonable occupier in all the circumstances.
  32. 32Is there a different standard of care owed to a child or adult?Yes. The duty owed to children is higher than that owed to adult visitors. Occupiers must take into account that children are likely to be less careful than adults and that they may beattracted to areas which adults would have the experience to avoid.
  33. 33Give a case showing how occupiers must take the behaviour of children into account.Jolley v Sutton London BC [2000]
    Facts: A boat was left abandoned for over two years on land owned by the defendant council. The boat appeared sound but was completely rotten. The council was aware of the boat's presence and made plans to remove it, but never did so. Two boys, the claimantand a friend, who were then aged 14 and 13, started to repair the boat, using a car jack and some wood to prop it up. While the boys were working on the boat it fell off the prop, crushing the claimant, who suffered serious spinal injuries resulting in paraplegia. He brought an action against the council for damages in negligence and breach of statutory duty under the OLA 1957. One of the issues for the court was whether the OLA 1957 applied, and if so, whether the defendant had breached their duty under it.
  34. 34Jolley v Sutton London BC [2000] contHeld: s2(2) “a duty to take such 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 for which he is invited or permitted by the occupier to be there.” s2(3)(a) "an occupier must be prepared for children to be less careful than adults...”. The defendant council was found liable. “the type of accident and injury which occurred in this case was reasonably foreseeable".
    This does not mean that children will always be given the protection of the OLA 1957. As so often in tort, the outcome turns on what is reasonable for an occupier to do in the circumstances. For example, where very young children are concerned, the court may take the view that they should have been supervised by their parents or guardians, and that it is not reasonable to expect the occupier to take on this parental role.
  35. 35As mentioned, the usefulness of s 2(3)(a) OLA 1957 has been rather diminished by the courts finding that an occupier is entitled to rely upon the supervisory role of parents in relation to young children. Case.Phipps v Rochester Corporation [1955]
    Facts: The claimant, who was a boy of five, went 'blackberrying' with his sister. They walked across a large area of land that was part of a housing estate being developed by the defendants. The claimant fell down a large trench that had been dug by an employee of the defendants. The trench would have been obvious to an adult.
    Held: It was held that prudent parents would not have allowed a young child to walk across the area in question and, therefore, the defendant was entitled to assume that children would not come onto the premises (because their parents would stop them).
    Note: This is not a defence, this is used to establish a breach.
  36. 36In this case, the courts held that a defendant council could not be held to higher standard that a reasonably prudent parent.Simkiss v Rhondda Borough Council (1983)
    Facts: a seven year old was seriously injured when playing with a friend on a steep hill. The child’s father did not appear to consider the hill to be dangerous.
    Held: The Court of Appeal held that it was not reasonable to hold the defendant to a higher standard of care than a reasonably prudent parent. Furthermore, the defendant was entitled to assume that the father would warn his child of obvious danger.
  37. 37In play areas specifically designated for children, where it is expected they will not receive close parental supervision, a higher standard may be required.Perry v Butlins Holiday World [1998]
    Facts: the claimant, a three-year-old, cut his ear when he fell on a sharp edge of a brick wall. Children were regularly in the area, which was used by children’s entertainers.
    Held: the defendants liable given the area, the type of visitor and the design of the wall.
  38. 38A duty is owed to all ‘visitors’. This includes to those who may have personal characteristics which might affect the standard of care owed. Give an example of a category of characteristics, other than children. Case.The disabled.
    Haley v London Electricity Board [1965]
    Held: it was found that the blind should be considered as potential users of the highway.
  39. 39What is the fundamental difference between a case under occupiers' liability, and a general negligence tort?A general negligence tort often refers to 'an activity' (or omission thereof), whereas OL refers to the condition of premises.
  40. 40Is a different standard imposed on occupiers viz. professionals?Yes, just as a higher standard is required viz. children, a lower standard is required viz. professionals exercising their calling - such as an electrician working on the property.
  41. 41Give an authority for the standard to which professionals, exercising their calling, will be held when working on an occupier's premises.Roles v Nathan [1963]
    Facts: The defendant owned assembly rooms which were heated by a coke burning boiler. Chimney sweeps were called in to cleanout the flues. They tried to complete the work without extinguishing the boiler. The defendant warned them that the boiler room was dangerous and had at one point removed them by force. The sweeps ignored the warnings and both were found dead in the boiler room the next morning. The sweeps’ widows in these proceedings claimed damages for the deaths of their husbands which they alleged were caused by the negligence or breach of statutory duty under the OLA 1957 of the defendant.
  42. 42Roles v Nathan [1963] contHeld: The occupier was found not to be liable because he had not breached his duty of care to the chimney sweeps, and/or because the warnings he gave were adequate to keep the visitors reasonably safe on the premises, in accordance with the provisions of the OLA 1957. On the issue of warnings, subsequent case law has made clear that very obvious dangers (for example, slippery sea walls) may not require warnings at all. Again, this is because it is not reasonable to expect an occupier to warn of every conceivable possible danger. Of course, warnings suitable for adult visitors may not be appropriate for child visitors
  43. 43If the danger encountered by the professional is outside the ordinary for their profession, and a result of the negligence of the defendant, there may still be a valid claim to make. Two cases.Salmon v Seafarer Restaurant [1983] and Ogwo v Taylor [1987]
    Facts: both actions brought by firemen injured in the course of fighting fires. In both cases the firemen had taken all reasonable precautions in fighting the fires. Their injuries resulted from risks that the occupiers had created by their negligence.
    Held: Such risks remained despite theexercise of skill by the firemen, so the defendants were still liable.
    The risk must be one that the independent contractor was expected to know about and to guard against i.e. the risk was ordinarily incidental to their profession.
  44. 44Warnings: Under s 2(4)(a) OLA, what will be considered sufficient warning of danger?If ‘…in all the circumstances it was enough to enable the visitor to be reasonably safe.'
  45. 45Some dangers will be so obvious, it will not be necessary for the occupier to provide warnings. Give an authority.Staples v West Dorset District Council [1995]
    Held: the claimant slipped on a sea wall which was covered in algae and, therefore, obviously slippery.
  46. 46Notices warning of dangers, and notices excluding liability are different. Can occupiers erect notices excluding liability?Section 2(1) OLA 1957 preserves the common law right that the occupier can: '...in so far as he is free to and does extend, restrict, modify or exclude his duty...'
    But there are 3 restrictions on the occupier’s freedom to use an exclusion clause to exclude or lessen their liability to the visitor.
  47. 47Restriction 1: third parties to a contract. OLA 1957 3(1)A contract may not exclude the common duty of care to third parties entering the premises.
    Contracts may only enhance the duty of care owed by an occupier to a contractual entrant.
    The purpose of s.3(1) OLA 1957 is to protect employees of a person with whom the occupier has contracted. Therefore, if the occupier has contracted with X for X’s employees to do work on the occupiers’ premises, the occupier may not restrict or excludeanyliability to them under the OLA 1957. Furthermore, any term of the contract which obliges the occupier to increase the level of care shown to these employees will establish the standard of care to be shown.
  48. 48Restriction 2: UCTA 1977 CRA 2015.If the claimant is a trader, on the premises in the course of their business, then UCTA 2(1) provides that 'a person cannot exclude or restrict his liability for death or personal injury resulting from negligence'. Claims for economic loss and property damage can be excluded subject to a test of reasonableness - s 2(2), s 11 and Sch 2.
    If the claimant is a consumer, engaging in consumer activities, then CRA 65(1) provides ‘a trader cannot by a term of a consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligence’. Regarding other classes of loss, an 'unfair' term/notice is not binding on the consumer.
    In both cases, awareness of the notices is not enough, in itself, to mean the claimant has consented to the risk.
  49. 49If neither UCTA or CRA apply, the courts may still appeal to the common law principle of 'common humanity', following Herrington, below. What does this mean?"Would a conscientious man with the defendant’s knowledge, skill and resources be reasonably expected to have done something which would have helped avoid the accident? If there was a substantial probability that the accident would happen, yet the cost/practicalities of making the premises safe were minimal then it is probably unreasonable to exclude or restrict liability."
  50. 50The OLA 1984 increased the standard of duty owed to trespassers. Which case precipitated this change?British Railways Board v Herrington [1972]
    Facts: The defendants owned an electrified railway line. It was fenced off but the fence had been in a state of disrepair for several months and people often took a short cut across the line. The defendant’s station master was notified that children had been seen playing on the line, but he did not arrange for the repair of the fence. The plaintiff, then aged six, got through the fence and was injured on the live railway line. Although a trespasser, he brought an action in negligence. The House of Lords had to decide whether he ought to be entitled to damages, despite his status as trespasser.
    Held: 1. If an occupier knew that there was a substantial probability that trespassers would come.
    2. He should weigh (a) the seriousness of the danger and (b) the degree of likelihood of trespassers coming against (c) the burden he would have to incur in preventing their entry or making his premises safe
    3. If he could at, small trouble and expense take some effective action, again I think that most people would think it inhumane & culpable not to
  51. 51Give a case narrowing Herrington to cases were there is no "is no genuine and informed choice".Tomlinson v Congleton BC [2004]
    Facts: The defendants owned and occupied a country park. A lake had formed in a disused quarry on the premises which was known to attract visitors to swim there. Swimming in the lake was prohibited and there were prominent signs to this effect. The defendants also hired rangers to warn people of the danger of swimming in the lake and to hand out safety leaflets. The claimant, who was 18 years old, dived into the shallow water of the lake. He hit his head and sustained very serious injury. He sued the defendants, alleging that the accident was caused by their breach of duty to him as a trespasser under the OLA 1984.
    Held: The House of Lords held that any risk of the claimantsuffering injury had arisen not from any danger due to the state of the defendants' premises or to things done or omitted to be done on them, but from the claimant’sown misjudgment in attempting to dive in too shallow water.
  52. 52Generally, the duty of an occupier to a visitor is non-delegable. However, there is one particular situation in which it may be. What is that?Section 2(4)(b). To an independent contractor. If the occupier has taken reasonable steps to satisfy himself that a contractor is reasonably competent, and has done work properly, he will not be liable for damage caused by the negligent work of that contractor.
  53. 53The complexity of the independant contractor's work will have a bearing on whether the occupier is expected to check it has been properly done. Give a case in which the work was deemed too complex to place a burden on the occupier to check.Haseldine v Daw [1941]
    Facts: the claimant visited a block of flats owned by the defendant in order to see one of the tenants. He was injured when the lift plummeted to the basement. The dropping of the lift was caused by the negligence of the lift engineers.
    Held: It was held that the defendant had no responsibility as the work was technical and, therefore, reasonably entrusted to contractors; they were a competent firm and the defendant, having no technical knowledge, could not be expected to carry out any checks on the machinery.
  54. 54Give a case in which the work was deemed simple enough to place a burden on the occupier to check.Woodward v Mayor of Hastings [1945]
    Facts: a pupil at the defendant's school fell and injured himself on an icy step. The step had been left in a dangerous condition by a cleaner.
    Held: There was no technical knowledge in issue here and, therefore, the defendant was able to and should have checked and supervised the contractor in question.
  55. 55How do the courts treat causation and remoteness in cases of OL?Generally, if duty and breach have been satisfied, the courts work on the assumption that causation and remoteness will be satisfied also - except in very rare cases.
  56. 56Can a defense of violenti be used in cases of occupiers' liability?Yes, subject to the 4 stage violenti test. Section 2(5) OLA 1957 preserves the common law position.
    White v Blackmore [1972]
    Facts: concerned a car rally meeting. Notices on the site stated that there was danger and that the occupier would not be liable for any damage howsoever caused. There were similar notices in the programme for the race meeting. The claimant had seen the notices. During the event he was standing in a spectator area behind a rope barrier. A wheel of one of the vehicles caught the rope, released it and catapulted the defendant 20 yards thereby killing him.
    Held: volenti did not apply as, in the circumstances, the claimant could not have been fully aware of the particular risk caused by the inadequate barrier (which did not comply with safety regulations). However, it was held that the notices constituted a reasonable exclusion of liability (but notethis case was decided before UCTA 1977. The notices would now be subject to s.2 UCTA 1977).
  57. 57Violenti successful - rugby.Simms v Leigh RFC [1969]
    Facts: claimant rugby player injured himself running into a wall on the defendant's land after a rugby tackle.
    Held: the wall met every relevant safety standard and the rugby player was deemed to have constented to the risk.
  58. 58Violenti successful - live railway line.Titchener v BRB
    Held: A 15 year-old was deemed to have consented to the risk when she broke through fence and was injured on a live railway line.
  59. 59Can a defense of contributory negligence be used in cases of occupiers' liability?Yes. It is usually thought that Section 2(3) OLA 1957 upholds this common law defense: ‘the degree of care, and of want of care, which would ordinarily be looked for in such a visitor’ is taken into account. Refer to the 3 stage test for estabilishing contributory negligence.
    Young v Kent
    Facts: a 12-year-old claimant was jumping on and fell through a brittle skylight. Young was a trespasser not a visitor.
    Held: damages were reduced by 50 per cent for contributory negligence.
  60. 60What types of loss does the OLA 1984 cover?The OLA 1984 only applies in relation to personal injury. Property damage is specifically not covered (s. 1(8) OLA 1984) reflecting the attitude that such persons are still less worthy as claimants than visitors.
  61. 61OLA 1984. There is no automatic duty of care to trespassers, duty of care must statisfy a 3 stage test. All elements must be satisfied. S3(1)." 1. Is the occupier aware of the danger, or does he have reasonable grounds to believe it exists?
    2. Does the occupier know, or have reasonable grounds to believe, that someone is in the vicinity or may come into the vicinity of the danger, and at the time the danger occurs?
    3. Is the risk one which, in all the circumstances, it is reasonable for the occupier to protect the trespasser from?
    In short: Danger, Proximity and Precautions (DPP)"
  62. 621. Is the occupier aware of the danger, or does he have reasonable grounds to believe it exists? Give case law example.Rhind v Astbury Water Park [2004]
    Facts: the claimant suffered head injuries when he hit his head on a fibreglass container when diving into a lake. The container was not visible from the surface and therefore the defendants had no knowledge, nor reasonable grounds for them to believe, that the container was there.
    Held: No duty was owed.
  63. 632. Does the occupier know, or have reasonable grounds to believe, that someone is in the vicinity or may come into the vicinity of the danger, and at the time the danger occurs? Give case law example.Donoghue v Folkestone Properties [2003]
    Facts: the claimant suffered injuries when diving into the defendant’s harbour at night and in midwinter.
    Held: No duty was owed as although the defendant was aware people swam in the harbour during the summer, they were not aware that people would be swimming at night in midwinter.
  64. 643. Is the risk one which, in all the circumstances, it is reasonable for the occupier to protect the trespasser from? Give case law example.Analysis here is the same as in breach. If the claimant freely chooses to engage in an activity that carries an inherent risk, no duty will be owed. Occupiers are not expected to protect trespassers from obvious risksor self-inflicted harmunless there was no genuine and informed choice by the claimant, for example, where the claimant was an employee or lacked capacity such as a child who was unable to appreciate the danger.
    Tomlinson v Congleton BC [2004]
  65. 65Differences between the OLA 1957 and OLA 1984: breach / what constitues reasonable precautions to prevent harm.The standard of reasonable mitigation is less onerous under the 1984 Act, as the claimant does not have permission to be on the land. Most 1984 Act cases hinge on the steps the defendant has taken to prevent trespassers, and whether the trespasser is on the land with criminal intent.
  66. 66Differences between the OLA 1957 and OLA 1984: sufficient warning of the danger.Again, the standard is more onerous under the 1957 Act, than the 1984 Act, because it is often the case that the lawful visitor has no choice as to whether they enter upon the premises and, trespassers almost invariably have a choice. Physical barriers can be enough to discourage trespassers from taking the risk.
  67. 67Violenti and the 1984 Act: It seems the courts are happy to find volenti against a trespasser where there was an inherent danger in the activity which caused the injury. Case.Tomlinson v Congleton
  68. 68—

Information

Description
Tort Law Flashcards on Tort - Occupier's Liability, created by Sam Grimley on 05/07/2019.
Created by
Sam Grimley
Views
1
Rating

More on Occupiers' liability

Feedback

What is it about?

What do you think of the new look?

How do you like it?