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Summary Occupiers Liability Revision
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A Tort law revision summary on occupiers liability. Received a 2:1 mark from Cambridge University!
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Occupiers Liability Act 1957In considering whether D owes C a duty of care:
1. Common duty of care
S.2(2) of the OLA 1957:
“The common duty of care is a duty to take such care as in all the circumstances 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.”
S.2(3) of the OLA 1957:
“The circumstances relevant for the present purpose include the degree of care and of want
of care, which would ordinarily be looked for in such a visitor.”
i. Known Vulnerabilities
Pollock c Cahill 2015 - common duty of care required D to have regard to any known
vulnerability of the visitor e.g. a blind person
ii. Obvious Risks
Tomlinson v Congleton BC: D is not liable when C does an obvious risk
2. Premises
S.1. OLA 1957
Common care of duty extends to anyone occupying/having control over any fixed or movable
structure on the premises
State of the Premises
Duties to protect someone are duties to protect people from being harmed as a result of the
state of the premises being in a dangerous condition
Key case – Tomlinson v Congleton BC (2004); man was injured when swimming in a lake,
but there was nothing wrong or dangerous about the actual lake
Property
S.1(3) OLA 1957 – common duty of care extends to taking reasonable steps to see that property on
the premises isn’t damaged as a result of X’s land being in a dangerous condition
The duty is owed to whoever owns the property at the time
Property doesn’t have to belong to the person who has it; they just have to be in possession
3. Occupier
S.1(2) OLA 1957:
“The persons who are to be treated as an occupier…are the same…as the persons who would at
common law be treated as an occupier”
Definition of occupier was clarified by Lord Denning in Wheat v E Lacon & Co Ltd: as a
person who has sufficient control over the premises to the extent that he ought to realise that
lack of care on his part can cause damage to his lawful visitors
Shtern v Cummings – company director was not responsible for day-to-day operation of
business because he didn’t have sufficient control
There can be several occupiers, who will then be jointly and severally liable if they fail to
dispense their duty of care
4. Visitor
When is A a visitor?
i. A was invited/permitted to enter the premises by B
ii. A was invited/permitted to enter the premises by someone who has the authority to
issue it on the behalf of B
iii. A entered in ‘good faith’, reasonably believing he was invited by someone who had
the authority to invite him. Edwards v Railway Executive – a person’s state of
mind has to be considered. In these cases involving permission given by someone
, other than the occupier, the key question is whether the person giving the
permission has “ostensible authority” to do so (Stone v. Taffe)
iv. Entry with implied permission e.g. Harvey v. Plymouth CC: question was whether
D had impliedly consented to C’s activity e.g. in public spaces used for recreational
activity
When does A cease to be a visitor?
Someone can cease to be a visitor if he goes beyond the bounds within which he is permitted
The Calgarth (1972) – “when you invite a person into your house to use the staircase, you
do not invite him to slide down the bannisters”
Harvey Case - X ceased to be a visitor on council land when he became drunk, fell and
suffered brain damage’; the council did not permit people to use their land for activities that
carried an obvious risk of accident
Persons lawfully on the premises
S.2(6) OLA 1957 - a common duty of care extends to those who are on X’s premises lawfully
BUT this doesn’t apply to:
1. A person who enters premises with rights conferred on them by the
Countryside & Rights of Way Act 2000 or;
2. The National Parks and Access to the Countryside Act 1949; such a person
comes under the OLA 1984
3. Trespassers
5. Children
S.2(3)(a) OLA 1957
“An occupier must be prepared for children to be less careful than adults”
Important cases:
Glasgow Corp v Taylor: child was allured into area by berries, which were poisonous. Doctrine
of allurement means a child is not a trespasser
Phipps v. Rochester Cropn: occupiers are entitled to assume that parents will exercise
reasonable care for their children’s safety
Bourne Leisure v. Marsen: are the premises safe for a child accompanied by adults?
Keown: occupier is not liable if the child appreciated the risks of what he was doing
6. Jobs Carrying Special Risks
S.2(3)(b) OLA 1957:
“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, so far as the occupier leaves him free
to do it.”
E.g. Roles v Nathan
7. Warnings
S 2(4)(a) OLA 1957:
“Where damage is caused to a visitor by a danger of which he had been warned by the
occupier, the warning is not to be treated without more as absolving the occupier from
liability, unless in all the circumstances it was enough to enable the visitor to be reasonably
safe.”
Rae v Mars – the greater the danger, the more specific the warning should be
Darby v National Trust – warning of obvious risks is not needed
8. Independent Contractors
S. 2(4)(b) OLA 1957
“An occupier is not liable for an independent contractor if “in all the circumstances he had
acted reasonably in entrusting the work to an independent contractor and had taken such
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