Tutorial Work on Chapter: Occupiers\' Liability (Tort Law) PDF

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Tutorial Work on Chapter: Occupiers' Liability (Tort Law)...

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Potential defendant: Neo, Zap Ltd Potential claimant: Bobby and Ana’s parent

Issue: 1. Neo engage an uninsured company Zap Ltd, independent contractor – S2(4)(b) 2. Neo sealed the entrance to the wooden playhouse with a red tape 3. Ana is a visitor and when she crossed the prohibited area, she became a trespasser. Question: Can she be converted back to lawful visitor? Answer: Yes, under allurement principle in the case of Glasgow Corp v Taylor. See the case of Jolley v London Borough Council of Sutton. 4. Bobby is a lawful visitor and has a claim under OLA 57’. He suffered injuries caused by state of premise.

Outline: Identify Neo as the occupier under S1(1) and as per the principle under Wheat v E’Lacon, ie. an occupier will have sufficient control over the premise. The injuries were caused by the state of premise. Premise was defined as pursuant to S1(3) OLA 1957.

Consider Ana’s status as a claimant. Is she a visitor or a trespasser? A visitor is a person who has express and implied permission as pursuant to S1(2) OLA 1957, ie. A visitor is a licensee or an invitee. A person is also considered as a visitor if he is entering pursuant to a legal right under S2(6) or he is entering pursuant to a contract under S5(1).

On the facts, the place appears to be open to public. Therefore, Anna has implied permission to enter, ie. she is a visitor but note that she exceeded the permission when she entered the playhouse, ie. the sign clearly indicates no entry as per the case of Glasgow Corp v Taylor. Consider allurement principle and whether it could be applied to convert her from a trespasser to a visitor. Glasgow Corp v Taylor was a case decided under common law at the time that common law does not recognise a duty of care towards a trespasser. Consider whether the court will apply allurement principle in light of OLA 1984. Jolley v London Borough Council of Sutton seems to indicate that the allurement principle can be applied. if the allurement principle can be applied, Anna’s claim is under OLA 1957, there is a duty of

care under S2(1) OLA 1957. S2(2) OLA 1957 stated that the standard of care expected by the occupier must take reasonable steps to make sure the visitor is reasonably safe in the premise. In determining whether an occupier is in breach of his duty, the court will look in to S2(3) and S2(4) OLA 1957. Consider S2(3)(a) which imposes a higher standard when children are involved. The occupier must be prepared for children to be less careful than adults. Hence, occupier must take reasonable steps to keep the children safe in the premise, ie. by blocking the entrance to the prohibited area. In Phipps v Rochester Corp, the court held the occupier not liable as the court found that the defendant was entitled to expect such young children to be accompanied by their parents where parents should bear the responsibility. However, the case of Phipps must be distinguished from this case where the responsibility cannot be pushed to the parent. It is worth noted that the court would decide Neo would be liable as the playground is somewhere the children has access to.

Consider the warning can absorb the liability. The warning itself needs to be sufficient under S2(4). On the facts, the warning of quoting ‘danger’ is not enough. When there are children involved, there must be a physical barrier as the children cannot read as per the case of Roe v Mars. Consider the S2(4)(b). can the occupier push the liability to the independent contractor? This can be done if the injury is caused by the faulty execution of the independent contractor’s works. On facts, it does not appear that the injury is caused by the faulty execution of Zap Ltd. There are three requirements to be fulfil if Neo wants to push the liability to Zap Ltd. 1) It must be reasonable to entrust the work to the independent contractor. 2) the occupier must take reasonable steps to ensure that the contractor is competent. 3) the occupier must take reasonable steps to ensure that the work is reasonably done. On the facts, it can be argued that the Zap Ltd is not competent as it is not insured. It was laid down in the case of Ferguson v Welsh. In the case of Haseltine v Daw, if the repair or replacement work involved skilled and professional skills, the occupier is not expected to check the work. In Woodward v Mayor Hastings. On facts, it can be concluded that occupier is still liable for the injuries as it is not caused by the faulty execution of the independent contractor’s work.

There are two defences can be raised by the defendant under S2(3) and S2(5). If Anna is a trespasser, S1(3) OLA 1984 will applied. There are three conditions to be fulfil: 1. The

occupier must be aware of the danger. 2) The occupier has the reasonable ground to believe that another person is in the vicinity of the danger. 3) Is the risk that the occupier is expected to provide the protection in that case. On facts, all three conditions can be satisfied. Hence, duty of care is satisfied.

Consider breach under S1(4). Consider warning under S1(5). Sufficient warning will absorb the occupier’s liability. On facts, the warning is insufficient as danger is not specified. There are defences can be raised by the defendant, S1(6) Volenti non-fit injuria. The question is whether contributory negligence is a defence under OLA 1984. The case of Revill v Neuberry stated that contributory negligence is still a defence although OLA 84 does not expressly mention it.

Bobby will have a claim under OLA 57. S2(1) duty of care and the court will consider S2(2) for standard of care and breach. Conclude that the possibility there is a breach. However, discuss contributory negligence under S2(3) as if Bobby has failed to take reasonable care of his own safety?...