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Tort Law - Occupiers’ Liability (Exam Plan)

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I scored 75% in Tort Law and received a Distinction (74%) overall in the GDL at the University of Law using these notes. These notes are written in the form of step-by-step exam plans. Compared to standard notes, this will save you lots of time. Most people will make notes during workshops, and ...

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  • July 20, 2023
  • 21
  • 2021/2022
  • Exam (elaborations)
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Tort Law - Occupiers’ Liability

CHOOSE RELEVANT ROUTE BELOW ACCORDING TO WHETHER THIS IS A
VISITOR OR TRESPASSER SITUATION

Occupier’s liability as regards to visitors (OLA 1957)

[STEP 1] Common duty of care of an occupier

C v D - OLA 1957

[INSERT C] can consider suing the [INSERT D] under the Occupiers’ Liability Act 1957.

Duty of care?

The occupier owes an automatic common duty of care to all visitors (s.2(1) OLA 1957).
Liability under the duty extends to personal injury and property damage.

For [INSERT D] to owe [INSERT C] a duty of care, [INSERT C] must show:

- C suffered loss (PI or property damage) due to the state of the premises (s.1(1)
OLA 1957);
- D is an occupier; and
- C is a visitor.

Premises

Premises is widely defined to include open land, and fixed and movable structures,
including vessels, vehicles or aircraft (under s.1(3)(a) OLA 1957).

- s.1(1) OLA 1957 is not interpreted literally to include all activities carried out on
an occupier’s premises.
- It is generally accepted that it was not the intention of Parliament for occupiers to
owe a duty of care in regards to activities which have nothing to do with the state
of the premises (e.g. jumping into a shallow lake as per Tomlinson v Congleton
Borough Council). On the other hand, activities closely related to the state of the
premises, such as danger caused while attempting DIY, can fall within the OLA
1957 (Ogwo v Taylor).

C did / did not suffer loss due to the state of the premises as [INSERT PREMISES] falls
within s.1(3)(a).

,Is D an occupier?

An occupier is anyone with a ‘sufficient degree of control over the premises’ (Wheat v E
Lacon & Co Ltd). This includes:

- someone other than the owner;
- there can be multiple occupiers; and
- an independent occupier can be an occupier while working on another’s
premises if they have the required degree of control over the area where they are
working.

- Where a contractor is held not to be an occupier under OLA 1957 or 1984, they
may still be liable for common law negligence under the established duty to take
reasonable care to avoid harm to people they could reasonably expect to be
affected by their work (A C Billings & Sons Ltd v Riden). This includes
trespassers (Buckland v Guildford Gaslight & Coke Co).

D is / is not an occupier as…

Is C a visitor?

A visitor is anyone with express or implied permission to be there (s.1(2) OLA 1957).

[IF NOT EXPRESS] Implied permission could be permission:
- in exercise of a legal right, e.g. policemen and firemen (s.2(6));
- under the terms of a contract (s.5(1));

Under s.1(4) OLA 1957, a person is not a visitor if they enter:
- Pursuant to the Countryside and Rights of Way Act 2000 (s.1(4)(a)); or
- Under an access agreement or order under the National Parks and Access to the
Countryside Act 1949 (s.1(4)(b)).

[IF YES, GO TO OLA 1984 STEPS] If C exceeds their permission, they become a
trespasser (OLA 1984 applies instead).

C is / is not a visitor as…

Therefore, D does / does not owe a duty to take reasonable care for C’s safety.

[STEP 2] Has [INSERT D] breached this duty of care?

, The duty is breached if [INSERT D]’s conduct falls below the standard of the reasonable
occupier in the circumstances (s.2(2) OLA 1957).

[IF CLEAR] This has been breached by [INSERT D’s ACT / CARELESSNESS].

The court will consider all the circumstances, including:
[SELECT RELEVANT ONES THEN DO APPLICATION UNDER UNDERLINED
HEADINGS FOR EACH]
- The nature of the danger
- The purpose of the visit
- Magnitude of risk
- How long the danger had been on the premises
- Cost and practicability of precautions
- The type of visitor (s.2(3) OLA 1957)
- Any warning of the danger (s.2(4)(a))
- Did the occupier discharge their duty by instructing an independent contractor?
(s.2(4)(b))

Nature of the danger

Purpose of the visit

Magnitude of risk

How long the danger had been on the premises

Cost and practicability of precautions

How difficult would it be to remove or reduce the risk and how much would it cost?

Type of visitor (s.2(3) OLA 1957)

Children are owed a higher standard of care (s.2(3)(a)).
- If the danger is an allurement, the occupier must do even more to protect the
child’s safety (Glasgow Corporation v Taylor).
- But, in the case of very young children, if the occupier makes the premises
reasonably safe for a young child as accompanied by the sort of guardian they
could reasonably expect in the circumstances, this will amount to compliance
with the duty (Phipps v Rochester Corporation).
- The child in this case was 3 (distinguish/apply).

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