Flashcards
OCCUPIER'S LIABILITY - Flashcards
Flashcards do conjunto (33)
- 1Occupier's LiabilityWhere a plaintiff suffers harm or damage on land for which they say the landowner is responsible.
Split between "state of premises" (the Act) and the "activity on premises" (common law) - 2Hackett v Calla & Associates [2004] - Confirms both common law and statutory routes in occupier's liability.Plaintiff thrown out of nightclub and started a riot, resulting in him being struck by a blunt object held by security.
Held that the allegations were to do with an activity on the premises, not the state of the premises, so his claim was not covered by section 3(2) of the 1995 Act. - 3Turner v Curragh Racecourse [2020]Plaintiff injured by galloping horses on racetrack.
Was able to claim under the common law higher duty of care of "activity on the premises" instead of the lower duty of care owed by the Act - 4Common Law entrants1. Contractual Entrants - duty is defined by terms of contract - if absent, the court implies a term of the occupier taking reasonable care to make the premises safe.
2. Invitees - entering with occupier's consent where he derives advantage - occupier must take reasonable care to prevent injury from unusual dangers which he knows or ought to know of. - 5Common Law Entrants (cont.)3. Licencees - entering with occupier's express or implied consent but conferring no benefit to him - occupier must warn of concealed dangers of which he is aware.
4. Trespassers - entering without the express or implied consent of occupier - occupier must not intentionally injury entrant or act in reckless disregard for them or their property.
Following 1975, this changed to a duty to take reasonable care. - 6Contractual EntrantsO'Gorman v Ritz - a cinema patron
Callaghan v Killarney Race Co - sporting spectators - 7InviteesWhite v France - customer making a complaint
Hayward v Drury Lane Theatre - actress auditioning
Indermaur v Dames - gas-fitter lawfully on premises - fell through un-fenced hole - akin to customer in shop - entitled to exercise of reasonable care to prevent damage from unusual danger - 8LicenceesSouthcote v Stanley - a guest at a house
Dunster v Abbott - a person entering premises to solicit business or beg
Lawery v Walker - person crossing a known shortcut or right of way. - 9TrespassersUnited Zinc - no liability for having a poisonous pond
G'Central R'way v Bates - no liability for an unfenced saw-pit.
Deane v Clayton - no liability for broken glass on wall to prevent intruders.
Bird v Holbrook - incurred liability for a spring-gun trap. - 10Challenges to the Old OrthodoxyMcNamara v ESB - Boy was severely harmed when he grabbed an electric cable on D's premises which they had failed to safeguard from children they knew played in the premises - he was clearly a trespasser - what duty is owed?
A reasonably foreseeable trespasser was owed the general duty of care - must take reasonable steps to prevent harm. - 11Current position -Unanticipated trespassers who were not reasonably foreseeable - you cannot act with reckless disregard.
Reasonably foreseeable trespassers - must take reasonable steps to prevent the harm. - 12Current Position (cont.)Invitees, contractual entrants and reasonably foreseeable trespassers are all owed the same duty of care.
Foley v Musgraves [1985] - duty to invitees was to take reasonable care in all the circumstances to see that the premises were reasonable safe. - 13Common law as it stands - not developingInvitees, licensees and reasonably foreseeable trespassers are all owed the same duty of care - the occupier must take reasonable care in all the circumstances.
- 14Occupier's Liability Act 1995 - Statutory footing for the "state of the premises" - DefinitionsOccupier - person exercising control over premises - owner, landlord or tenant.
Can be more than one at a given time...
If a tenant is not allowed to make changes, landlord is the occupier as he is exercising control (Keegan v Sligo) - 15Definitions (cont.)Danger - liability under the act is based on a danger on the premises which is directly attributable to the state of the premises.
Premises - land, water, fixed or movable structures on either land or water. Includes lifts, ladders, diving boards, scaffolding, and even large machinery. - 16Definitions (cont.)Damage - includes loss of property and injury to animals
Injury - includes loss of life, any disease, and any impairment of physical or mental condition.
Recreational Activity - typically anything that is recreational - defined as an activity, alone or with others, in the open air, including scientific research and nature study, visiting caves, buildings and visiting sites. - 17Reckless Disregard - Section 4(2) provides that regard should be had to:a) Whether the occupier knew or had reasonable grounds for believing that a danger existed on the premises;
b) Whether the occupier knew or had reasonable grounds for believing that the person and, in the case of damage, property of the person, was or was likely to be on the premises;
c) Whether the occupier knew or had reasonable grounds for believing that the person or property of the person was in, or was likely to be in, the vicinity of the place where the danger existed;
d) Whether the danger was one against which, in all the circumstances, the occupier might reasonably be expected to provide protection for the person and property of the person;
e) The burden ... of eliminating the danger or of protecting the person ... from the danger, taking into account the difficulty, expense or impracticability, having regard to the character of the premises and the degree of the danger, of so doing; - 18Reckless Disregard (cont.)f) The character of the premises including, in relation to premises of such a character as to be likely to be used for recreational activity, the desirability of maintaining the tradition of open access to premises of such a character for such an activity;
g) The conduct of the person, and the care which he or she may reasonably be expected to take for his or her own safety, while on the premises, having regard to the extent of his or her knowledge thereof;
h) The nature of any warning given by the occupier or another person of the danger; and
i) Whether or not the person was on the premises in the company of another person and, if so, the extent of the supervision and control the latter person might reasonably be expected to exercise over the other’s activities. - 19Duties Under the ActPower v Governor of Cork Prison [2005] - plaintiff slipped in prison showers - defendant could have discharged duty by drying the floor or putting down mats.
McDonald v Fossway [2012] - plaintiff suffered broken ankle after falling down dimly lit stairs in restaurant - stairs had no banisters - shoes may have a bearing but did not in this case. - 20Occupier's Liability Act 1995 - Categories of Entrant and Duties OwedVisitor - an entrant who is lawfully on the premises with permission or invitation - includes social guests, contractual entrants, and entrants with rights such as Gardaí.
Duty owed is that of reasonable care in all the circumstances to ensure no injury or damage occurs. - 21Visitors (cont.)Two factors determine if a reasonable standard of care exists:
1. The level of care visitors can be expected to take for their own safety
2. Whether visitors are in the company of others and the level of supervision and control such persons can be expected to exercise over the visitors. - 22Visitors (cont.)Fitzgerald v South Dublin County Council [2015] - "reckless disregard" - 9 year old cut knee on football pitch - broken glass on pitch - defendant was not in breach and did not act in reckless disregard - there was a system of management in place for the pitches.
- 23Visitors (cont.)Heaves v Westmeath - you are a visitor if you pay to enter a premises.
Newman v Cogan [2012] - DIY case - standard of care for amateur is lower than a professional - installed wrong glass causing lost eye to plaintiff - 24Visitors (cont.)Stokes v South Dublin County Council [2017] - fell on footpath at entrance to caravan park while jogging - still a visitor on the premises even though carrying out recreational activity of jogging
Walsh v Wexford Rugby [2017] - hurt ankle after tripping in car park - alcohol was relevant in not finding liability. - 25Recreational UserEntrant who, with or without permission of occupier, or at his implied invitation, is present on premises for the purpose of engaging in recreational activity.
Cannot be family, an entrant with express invitation, or a person with permission.
Duty of care - cannot intentionally injury or act in reckless disregard to them or their property. - 26Recreational Users (cont.)Section 4(4) - where a structure on premises is or has been provided for use primarily by recreational users, the occupier shall owe a duty towards such users in respect of such a structure to take reasonable care to maintain the structure in a safe condition.
- 27Recreational User (cont.)Weir Rodgers v SF Trusts Ltd. [2005] - Plaintiff fell off a cliff-face. She went through a broken fence and ignored a warning sign - the danger was not apparent to her - Supreme Court held that an objective test for reckless disregard ought be applied -
She was unable to recover - there was nothing exceptional which would dictate otherwise. - 28Recreational User (cont.)Ryan v Office of Public Works [2015] - defendant not liable to plaintiff who tripped on bars at ankle level in children's playground.
Wall v National Parks Service - High court refused to allow plaintiff to recover when the cost of keeping the paths in safe condition was too high - policy reasons? - 29TrespasserAn entrant without express or implied permission of the occupier.
Duty owed - occupier must not intentionally injure them or their property, nor act in reckless disregard. Same as recreational user. - 30Trespasser and Recreational User Case LawWilliam v TP Wallace [2001] - if a visitor over-extends his permission or breaches it, he becomes a trespasser.
McGowan v Dun Laoghaire - P paralysed when jumping into ocean at popular spot - recreational user - HC found that the D acted in reckless disregard as the premises was extremely popular - duty could have been discharged with a sign. This duty only exists in busy places. there is no duty to move the rocks or make it safe. - 31DefencesSection 4(3) - no duty is owed to a trespasser who enters the premises to commit a crime.
Section 5 - can modify duty owed by express agreement or notice - but cannot lower below what is owed to trespassers and recreational users. - 32Defences (cont.)Section 7 - occupier shall not be liable for injury or damage caused by a danger existing on the premises due to the negligence of independent contractors, provided that care was taken in the selection of the independent contractor and the defendant was not aware that the work was not carried out deficiently.
- 33Defences (cont.)Contributory Negligence - are you a trespasser or contributorily negligent if you miss or ignore a warning sign?
Kennedy v East Cork Foods - "downright carelessness" is what is required for contributory negligence.
Vega v Cullen - plaintiff was 30% contributorily negligence for climbing an unstable ladder to talk to a friend.
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- FE 1 Tort Law FlashCards sobre OCCUPIER'S LIABILITY - Flashcards, criado por Morgan Moriarty em 02-08-2020.
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