UOL (SEPTEMBER 2021) – REVISION

TORT LAW - OCCUPIER’S LIABILITY

SAMPLE QUESTIONS AND ANSWERS

Quick Summary:

a) Essay: use various provisions to analyze the law generally: (i) does duty in OLA 1957 & OLA 1984 protect against injury
sufficiently – discuss relevant sections, scope of duty under both Acts – relevant cases – dividing line between OL & negligence –
liability for state of premises vs. careless acts; (ii) specific provisions in the Acts – children, skilled visitors, warning, independent
contractor, reasonable standard of care, range of defences – adequate protection for visitors & trespassers?

b) Problem:
ü identify injuries that give rise to claims – separate accordingly based on OLA 1957 & 1984 respectively

ü parties (Cl. & D)

ü do claims fall within scope of Acts (S1(1)) – state of premises, anything done or not done – if injury is caused by the state of
premises it falls within the scope: Ogwo, Fairchild. Injuries due to careless act of occupier should fall under negligence: Ogwo.
Acts of the claimant do not fall within either statute: Tomlinson. Acts of other visitors or the occupier or those authorized by
occupier may fall under the Act: Tomlinson (obiter), Cunningham. Careless acts of independent contractors should fall under
negligence: Naylor, Bottomley.

ü does D have sufficient degree of control to be sued as “occupier” (S1(2))

ü did injury occur on “premises” (S1(3)(a))

ü does Cl. fall within definition of “lawful visitor” (S1(2)) if yes proceed under OLA 1957, if not – indicate that OLA 1984
applies – note: those who exceed restrictions will fall under ‘trespasser’ & young children who trespass due to allurement where
there is clear restriction on premise will be ‘trespassers’

ü for visitors, discuss liability under OLA 1957:

i) duty: S2(1)
ii) standard of care: S2(2)
iii) if a child visitor was injured on facts: S2(3)(a)
iv) if the claimant was a skilled visitor, injured while exercising his skill on the premise: S2(3)(b)
v) if warning was required but not given/inadequate: S2(4)(a)
vi) if the danger or injury was due to the fault of an independent contractor: S2(4)(b)
vii) if the claimant knowingly and willingly accepted risk of injury: S2(5)
viii) if the claimant was contributory negligent: S2(3)
ix) if the visitor was entering through a right conferred by law: S2(6)
x) if the visitor was entering under contract: S5(1)

ü for trespassers, discuss liability under OLA 1984: is duty owed (S1(3)(a), (b) & (c), did the occupier meet the standard of care
by taking steps to ensure safety S1(4), was warning or some notification given to ensure safety (S1(5), can the trespasser be
regarded as volens: S1(6). Claims for property damage is not allowed: S1(8).

PROBLEM QUESTIONS

2021 (A) Q3
Gray Gardens is a lovely Tudor stately home in the English countryside. It is owned by Lord and Lady Bountiful but
operated as a visitor attraction by “Ancient England plc”. Prior to opening for the spring season, Ancient England
employs Roger to repair the crumbling brickwork on an external staircase leading to the garden. When the home opens,
among the first visitors are Michael, his elderly mother Anna and his son Billy, aged six. When purchasing their tickets,
Michael receives a map of the grounds which states: “Customers enter at their own risk. Ancient England accept no
responsibility for loss or injury howsoever caused”. They proceed with their visit, but a step on the garden staircase
breaks, causing Anna to fall down and injure her hip. On the edge of the grounds, hidden behind a hedge, is a small
quarry which is marked on the map. Billy goes exploring on his own and discovers the quarry, which is not marked by
any warning sign. He begins to climb down into the quarry and then slips in, falls some distance, and sustains serious
injury. Michael has now developed an unpleasant rash on his hands which he believes may be linked to a weed killer
used in Gray Gardens’ rose garden. Advise the parties.

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Answer Guide:

Introduction:
• The relevant area for discussion here is occupier’s liability
• Issue: whether Anna, Michael and Billy will be able to claim compensation for their respective injuries under either
the OLA 1957 or OLA 1984
• The potential defendants are Lord and Lady Bountiful (‘the Bs’), Ancient England (‘AE’) and Roger (‘R’) under
occupiers’ liability

Body of Answer:
1. It is first noted that all claimants have suffered physical injuries – all such injuries shall be recoverable under both
OLA 1957 (S1(3)(b)) and 1984 (S1(8)) subject to applicable conditions. Both Acts permit claims for physical injuries.
Also, since all injuries happened on a fixed structure, the have occurred on ‘premises’ in order for both Acts to apply:
S1(3)(a) OLA 1957, S1(2) OLA 1984.

2. The first issue is whether all have suffered injuries due to the state of premises, or anything done or not done on them
– Ogwo v Taylor, Bottomley v Todmorden CC, Fairchild, Dunster v Abbott, Naylor v Payling all state that injuries
caused by the careless act of another should be recovered under common law negligence as they fall beyond the scope
of occupiers’ liability – based on the narrow interpretation of S1(1) OLA 1957 and 1984. However, Cunningham v
Reading FC and Tomlinson v Congleton BC (in obiter) state that if injuries were caused by the careless act of the
occupier or anyone authorized by the occupier, such actions may fall under the ambit of both Acts. Only injuries
caused by the claimant’s own actions will not be actionable under both Acts: Kolasa v Ealing Hospital NHST,
Tomlison. On the facts, A’s & M’s injuries are arguable to the state of premises/ things done or not done on them,
applying Dunster, and Tomlinson’s obiter (the steps on the staircase are part of the premise while the use of the weed
killer is for the premise itself and thus ‘something done on the premise’). As for Billy’s injuries, there is nothing to
suggest that the floor was of such condition that it caused him to slip and fall. It is likely that he was injured through
his own actions of climbing down the quarry. Applying Tomlinson and Keown, he may not be able to claim under
either Act. If, however, it is considered that his injuries were indeed due to the condition of the quarry itself being
dangerous, then the claim may proceed under OLA 1957/1984.

3. The second issue is whether the claim should proceed against either the Bs, AE or R, or all. S1(2) OLA 1957 defines
occupiers as those who have occupation and control over the premises and those who would be considered ‘occupiers’
under common law. S1(2) OLA 1984 states that the 1984 Act adopts the 1957 Act’s definition of occupiers. Applying
Wheat v Lacon together with S1(2), it is clear that only the Bs and AE would be occupiers for the purposes of liability
on the facts. R does not appear to have the necessary degree of control; his position being distinguished with that of
the contractor in AMF v Magnet Bowling. The facts are akin to Wheat v Lacon, and applying the same, the Bs and
AE are dual occupiers and thus the most suitable defendants. If at all, an action may proceed against R under common
negligence principles.

4. The third issue is whether the claimants are all lawful or unlawful visitors on the facts. S1(2) OLA 1957 states that
those who are the occupier’s visitors include anyone with licence, invitation or permission to enter, as well as those
considered under common law to be lawful visitors, i.e. those with implied permission to enter (Lowery v Walker).
On this basis, A and M are clearly lawful visitors whose claims will fall under OLA 1957. B’s position is debatable.
Gould v McAuliffe states that if entry to a part of the premise is prohibited/restricted, clear notice must be given to
indicate the restriction failing which the visitor will remain a lawful entrant. However, where clear notification is
given but ignored by the visitor, he will be considered an unlawful entrant: Anderson v Coutts. In Harvey v Plymouth
CC and The Calgarth, it was suggested that where it is obvious that a visitor should not enter a certain part of the
premise and did so recklessly, he may be treated as an unlawful visitor. The facts state that the quarry was on the map,
but at the edge of the grounds, and behind a hedge. It was also not marked by any warning sign. B is also a child of
six. It may be argued that whether entry is restricted or otherwise, is not apparently clear, in particular, to a six-year-
old. The fact that it is marked on the map may suggest that it is a part of the garden and the fact that it is simply behind
a hedge, but still accessible and not marked ‘No Entry’, may suggest that it is not out of bounds for visitors to enter
the quarry. On this basis, B may be deemed a lawful visitor (Gould applied).

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5. Thus, all claims will be considered under OLA 1957. The answer will also alternatively consider B’s claim under
OLA 1984, in the event that he is regarded a trespasser.

6. Under OLA 1957, all claimants are owed the common duty of care in so far as the occupier limits or excludes such
duty: S2(1). This is a duty to ensure that reasonable steps are taken, to ensure that the premise is reasonably safe for
its intended purpose of entry: S2(2). On the map, it is stated that customers enter under their own risk and AE does
not accept responsibility for loss or injury howsoever caused. This is an attempt by AE to exclude duty. However,
applying S1(3) and S2(1) UCTA 1977, AE may not exclude duty or liability on the facts, as injuries are personal in
nature and Gray Gardens will be considered a business premise.

7. The issue thus, is whether the occupiers here have discharged their duty and met the legal standard of care. Firstly,
with regards to B, applying English Heritage v Taylor, given that Gray Gardens is a Tudor stately home located in
the countryside, it is likely to be an old structure, comparable to heritage building/site. In such cases, any dangers on
the premise is likely to be less obvious and dangerous. The failure to ensure safe use of the premise, is likely to be
considered a breach of the occupiers’ duty, drawing analogy to Taylor, and distinguishing from Edwards v Sutton
LBC. With regards to B, falling down the quarry which was not properly marked and lacked warning signs, is
comparable to the fall sustained by the claimant in Taylor. The absence of warning in situation where danger is not
obvious, amounts to breach. On this basis, the absence of warning notices will also amount to breach, applying
S2(4)(a) OLA 1957, given that an occupier is not absolved of liability if he fails to given warning that is sufficient to
keep the visitor reasonably safe. However, the Bs and AE will argue that warnings are unnecessary where danger is
obvious (comparing with Staples v Dorset and Darby v National Trust). The dangers of entering a quarry are
inherently obvious and as such B should have avoided the same altogether. It submitted that the former argument will
apply given in particular, the fact that B is a child of six. This argument compounded with the provision in S2(3)(a)
OLA 1957 requiring occupiers to take greater care for the safety of children, will suggest that the Bs and AE have
fallen below the standard of care for B. Moloney v Lambeth states that greater care should be taken to keep children
safe. The same was said of holiday premises frequented by children in Perry v Buthins Holiday. It may also be argued
that a six-year-old exploring is likely to be allured by the appearance of a mysterious quarry. Applying the doctrine
of allurement, failing to close off the quarry, even though it lies hidden behind a hedge may not be regarded as
sufficient to keep the child visitor safe (Jolley v Sutton LBC, Taylor v Glasgow Corporation). However, AE and the
Bs, will allege that B’s injury is due to M’s failure to keep an eye over his son. The argument of parental responsibility
should absolve the occupiers of responsibility for B’s safety in the circumstances: Phipps v Rochester, Simkiss v
Rhonda BC. It is, ultimately possible that the court will apply Bourne Leisure v Marsden here to conclude that B
escaping M’s attention may not entirely be M’s fault, but that having marked the quarry on the map, AE and the Bs
had done enough to keep children safe. On this basis, the occupiers may not be liable for B’s injuries after all.

8. Next, with regards to A, she will argue that being an elderly visitor, she is vulnerable to falls and as such, to fail to
ensure the safety of the steps amounts to a breach of the occupiers’ duty. However, her circumstances will be
distinguished from G4S Care v JS Manley as she is not particularly vulnerable like the claimant in this case, who had
been recovering from a hip surgery. While Gray Gardens is indeed a Tudor stately home, with parts of the premises
being old and unsafe, the occupiers here will argue that they had discharged their duty to make sure the premise is
safe, by appointing R, the independent contractor, to repair the crumbling brickwork on the staircase. Applying
S2(4)(b) OLA 1957, where the injury was due to faulty execution of work by an independent contractor, the occupier
will no longer be answerable for the injury, if it was reasonably to entrust the work to the contractor, and the occupiers
took reasonable steps to satisfy themselves that the contractor was competent and the work was done properly.
Applying Haseldine v Daw, it is unlikely that the occupiers here would be able to tell from superficial inspection of
the staircase that it was bound to break even after the repairs. It is unclear whether the tested it by walking up/down
the stairs after the work was done. If the fault in the staircase was apparent or could have been detected by lay
inspection, then the occupiers here will fail to rely on S2(4)(b). Applying Woodward v Mayor of Hastings instead,
they would remain in breach of their duty notwithstanding the employment of R and the fault on his part. If, however,
like Haseldine, the fault in the step was still not apparent, then the occupiers may argue that they had successfully
discharged their duty, provided also that steps were taken to check that R is competent. If on this basis, the occupiers
are absolved of liability for the staircase-related injury to A, then A may pursue an action against R under common
law negligence, for careless conduct of repairing the staircase.

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 9. As for M, he alleges that the weed killer used in the rose garden is responsible for rashes he has developed on his skin.
It is unclear whether the weed killer is in fact the cause of the rash, but this is an issue of causation. As to whether
there is breach of duty in respect of the weed killer, the occupiers may argue that the use of the weed killer is necessary
and an unavoidable feature of the premise, then drawing analogy to Tedstone v Bourne Leisure, Sutton v Syston RFC
and Edwards v LBC of Sutton, the occupiers may not be found in breach of their duty. Alternatively, if M is able to
bring himself within the decision in Fairchild v Glenhaven FS, by showing that the occupier exposed visitors to
harmful substances on the premises, then liability may arise applying this decision as an analogous precedent.

10. In the event that A, M and B are all able to establish breach on the facts, the elements of causation and remoteness
must be satisfied, but it is doubted that these will be satisfied for B as his actions may constitute a break in chain of
causation and may be too remote. It is possible for M’s injuries to also be found unforeseeable and thus too remote.
As for A’s injuries, these will probably be recoverable having established causation, but the occupiers may argue that
having employed R to fix the staircase, A’s injury is no longer foreseeable. In the event that liability is established, it
is to be noted that the volenti defence in S2(5) may not be pleaded against the claimant here, as there is no evidence
of clear knowledge of risks involved or willing acceptance of the same: White v Blackmore. Neither is there evidence
of contributory negligence on A, M and B’s part, with B’s being regarded as unable to foresee the risk of injury given
his age: Yachuk v Oliver Blais.

11. If it is accepted that the quarry was in fact concealed by the hedge and thus clearly not open for visitation, and further
if the occupiers persuade the court that it was M’s responsibility to ensure that a young child like B doesn’t wander
into unsafe parts of the premise, B may be considered a trespasser under OLA 1984. The occupiers will try to rely on
Keown v Coventry NHST and Tomlinson, that his injuries were his own doing rather than the result of unsafe
premises. However, the facts will be distinguished given B’s age, which is far younger than the claimants in Keown
and Tomlinson. Proceeding under the OLA 1984, the issue is whether the occupiers do owe B a duty of care, applying
S1(3)(a), (b) and (c) OLA 1984. Applying S1(3)(a), the question is whether the occupiers knew or had reasonable
grounds to believe that the danger existed on the premise. Evidently, the occupiers are aware of the dangerous quarry
since it was marked on the map. Applying Tomlinson, the first condition for duty is satisfied. Next, it has to be shown
that the occupiers knew or had reasonably grounds to believe that trespasser was in the vicinity of danger or may come
into it (S1(3)(b)). Given that the quarry was marked on the map, visitors including parents of children may assume
that it was part of the garden, which is open to be explored. Although the entrance to the quarry was located behind a
hedge and was hidden, without any notices prohibiting entry or warning signs there is reason to think that someone
may come into the vicinity of danger, all the more a child. Here, it may be impossible for the occupiers to say that
there was no knowledge or reasonable grounds, as indeed this may be regarded shut-eye knowledge and the facts of
Swain v Natui Ram are distinguishable. Since no steps were taken to exclude entry, the facts of White v St Albans
are also distinguishable on the facts. This second condition for duty will also be satisfied. Lastly, for duty to arise it
must also be shown that the risk of danger in question is one from which protection should have been offered.
Considered that the quarry was accessible, the risk of a fall in the quarry clearly requires protection and nothing was
done to avert this risk, Tomlinson distinguished. Thus, S1(3)(c) will also be satisfied on the facts giving rise to duty.
The next issue is whether the duty was breached, applying S1(4) OLA 1984. S1(5) OLA 1984 adds that the duty to
keep the visitor reasonably safe can be discharged by giving adequate notice or warning of danger. Unlike the case of
Platt v Liverpool CC, no steps were taken at all on the facts to keep a potential trespasser from danger as the facts
clearly state that there was no sign warning of danger. There is no scope for applying the decision in Westwood v Post
Office either, on the facts, as in Westwood, there was at least a sign prohibiting entry. Instead, applying Young v Kent
CC, it is submitted that the quarry is inherently dangerous and posed a danger particularly to a child. It could have
been closed off but it was not. However, as argued above, if the court accepts the argument that parents are responsible
for the safety of their children, especially on holiday or recreational sites like Gray Gardens, rather than a school like
in Young, then the occupiers may not be found in breach. In any event, no defences may apply here as given B’s age,
he is unlikely to be found volenti non-fit injuria (S1(6) OLA 1984 will not apply), or contributory negligent. Liability
also cannot be excluded for injury as discussed above, pursuant to UCTA 1977.

Conclusion:
• In conclusion, with regards to A, subject to the occupiers being able to show that steps were taken to satisfy themselves
that R was competent and the work was done properly, A’s claim may not succeed.

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 • With regards to B, his claim may fail due to the argument of parental responsibility.
• M’s prospect of success is also subject to him being able to show that the occupiers failed to take reasonable care,
which is doubted on the facts.
• As whole, it is doubted that the claims will succeed also because of remoteness of damage.

2021 (B) Q3
Cherry Grove is an upmarket shopping mall on the outskirts of the town of Redbrook. The site is owned by Redbrook
Council while Cherry Grove is operated by “Multi-Malls plc”. Anita and her mother Gagal have arranged to meet at
Cherry Grove, to go shopping in preparation for Anita’s wedding. As she enters the mall, Gagal notices a sign on the
main door, “Use care when operating this handle” but almost immediately her finger becomes trapped in the handle
and is severely cut, requiring stitches. Having parked her car, Anita enters the mall and then uses the escalator. While
going up the escalator, Anita’s scarf becomes caught under one of the steps. Bystanders, seeing the accident unfold,
press the prominent red emergency button but it fails to stop the escalator. Anita is seriously injured in the escalator
accident and her wedding must be postponed. The escalator was recently inspected and given a safety certificate by
“Excellent Escalators”. Several days later, Anita’s boyfriend Dan breaks into Cherry Grove at night, intending to set
fire to the escalator in retaliation. However, the security alarm is set off and the noise is so loud that it causes Dan
permanent hearing loss. Advise the parties.

Answer Guide:

1. Gagal v Redbrook Council & Muli-Malls Plc

i) S1(1) OLA 1957 – injury is clearly due to the state of premises (door handle)
ii) S1(3)(a) OLA 1957 – injury happened on premises – mall – fixed structure
iii) S1(3)(b) OLA 1957 – personal injuries are recoverable under the Act
iv) S1(2) OLA 1957 – RC and MM are both occupiers – dual occupation – both have sufficient degree of control
if Wheat v Lacon is applied. However, possible to distinguish and apply Shtern v Cummings instead – owner
of land not the proper occupier, but management company is the proper occupier for defective fridge that
caused electrocution. If this is accepted, MM is the proper occupier.
v) S1(2) OLA 1957 – Gagal is clearly a visitor – guest at mall – has invitation to enter
vi) S2(1) OLA 1957 – duty is owed, no exclusion of duty on facts
vii) S2(2) OLA 1957 – occupier expected to take reasonable care to ensure visitor is reasonably safe in using the
premises
viii) S2(4)(a) OLA 1957 – occupier will argue duty discharged by giving adequate warning – this may not be
sufficient to keep the visitor reasonably safe – visitor still bound to use the door handle, which, upon
immediate use cause severe injury – handle should have been replaced – notice inadequate: Rae v Mars,
Roles v Nathan.
ix) As a whole, MM will be liable – unable to raise volenti or contributory negligence against Gagal.

2. Anita v Redbrook Council & Multi-Malls Plc

i) As discussed above for Gagal, the type of injury is recoverable, the place amounts to premises, the
appropriate defendant is MM and the injury was due to the state of premises
ii) Since Anita had entered as a shopper, she is also a lawful visitor to whom duty is owed as stated above for
Gagal
iii) It is arguable that MM breached their duty of care because the escalator was in a dangerous condition – it
was not possible to stop it by pressing the red emergency button – dangerous defect. This falls below the
standard of care in S2(2), White Lion Hotel.
iv) However, MM will raise S2(4)(b) OLA 1957, that this was faulty execution of work by Excellent Escalators.
Subject to MM being able to rely on S2(4)(b) and Haseldine v Daw, they may avoid liability.
v) They may allege contributory negligence as a defence but there is no evidence of fault on Anita’s part –
White Lion Hotel distinguished.

3. Dan v Redbrook Council & Multi-Malls Plc

i) Dan broke it – he will not be considered a lawful visitor – his claim will be discussed under OLA 1984.
ii) Physical injuries are recoverable under OLA 1984, S1(8) (permanent hearing loss)

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 iii) MM are the proper occupier as discussed above for Gagal and Anita, S1(2) OLA 1984
iv) The place also amounts to premises: S1(2) OLA 1984
v) MM will argue that the injury was due to Dan’s own actions of trying to set the escalator on fire – and
therefore that the claim should not be allowed to proceed under OLA 1984, applying Tomlinson, Rhind,
Ratcliffe
vi) In any event, duty will not be owed as S1(3)(a), (b) and (c) OLA 1984 will not be satisfied – it is unclear
that the danger of the alarms causing permanent hearing loss (Higgs v Foster applied, Tomlinson
distinguished). Further, there is no reason to think that anyone would be in the vicinity at the time, doing
what Dan did: Donoghue v Folkestone, Ratcliffe. The risk concerned is also probably not one that required
protection, given that these were alarms located in a mall and are meant to alert all in the event of danger. In
any event the danger/ risk was triggered by Dan’s actions: Tomlinson. Thus, duty will not arise. MM will
not be liable for Dan’s injuries.

2021 (Resit A) Q3
Windemere Primary School had a sports field surrounded on the edges by large old trees and bordered by an outer
fence. At the base of each tree was a small sign stating “Beware, danger of falling branches.” One windy day, Georgie,
a pupil at the school who was playing football, was hit on the head by a branch from the tree, sustaining severe
concussion. A local team of tree surgeons, “Tom & Jerry”, was called in to remove all dangerous branches from the
trees. While working up in one of the trees, Jerry grabbed a rotten branch which cracked and he fell to the ground,
breaking both legs. Cut branches were later deposited in piles around the edge of the sports field. One night, Valerie
was sneaking through a gap in the school’s fence to cut across the sports field on her way home from the pub. She failed
to see the piles of branches and tripped over one, sustaining severe cuts and tearing her new coat. Advise the parties.

Answer Guide:

1) Georgie v Windermere Primary School: main issues for discussion – S2(3)(a) OLA 1957 – given that she is a child
(primary school), whether greater care should have been taken on the facts (Moloney v Lambeth, Perry v Buthins,
Bourne Leisure v Marsden. Note: no need for parental responsibility and allurement principle discussion). Also,
whether warning was sufficient, S2(4)(a) OLA 1957. The school may be expected to have attended to the matter
sooner – having the branches cut rather than expecting students to avoid falling branches. Warning may not be
adequate: Roles v Nathan, Rae v Mars. Other issues such as whether injury was due to state of premises, who is the
proper occupier, whether injury occurred on premises and whether she is a lawful visitor are straightforward on the
facts.

2) Jerry v Windermere Primary School: main issues for discussion – S2(3)(b) OLA 1957 – given that they are skilled
visitors, whether Windermere will remain liable or their injuries may be considered a special risk ordinarily incident
to their calling (Roles v Nathan, Naeme v Johnson, Williams v DOE, Salmon v Seafarer, Ogwo v Taylor).
Alternatively, whether the school may rely on volenti non-fit injuria (S2(5) OLA 1957), or contributory negligence
(S2(3)). May distinguish from White v Blackmore. Other issues such as whether injury was due to state of premises,
who is the proper occupier, whether injury occurred on premises and whether he is a lawful visitor are straightforward
on the facts.

3) Valerie v Windermere Primary School: main issues for discussion – S1(3)(a), (b) & (c) OLA 1957 – whether duty is
owed. Applying Tomlinson, the risk of danger is known, but applying Swain v Natui Ram, Donoghue v Folkestone,
Ratcliffe, there is no reason to think that she would be on the premise, even with the gap in the fence. The risk may
be one that requires protection under S1(3)(c), but it can also be argued that it can easily be avoided if one had looked
carefully when walking in the school grounds. No duty will be owed. If at all duty is owed, however, breach may be
established under S1(4) and S1(5) OLA 1984. But the volenti defence under S1(6) may be discussed. Other issues
such as whether injury was due to state of premises, who is the proper occupier and whether injury occurred on
premises are straightforward on the facts. However, it has to be noted that only physical injuries are recoverable under
OLA 1984, S1(8), and not the torn coat.

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2021 (Resit B) Q3
An “Easy Hotel” is being constructed in the town of Summerfield. The site is owned by “Easy Hotels International”
and the main contractors are “Highrise plc”. At the height of the building project, there are a large number of workers
on the site. While she is connecting the heating system, Debby, an electrician, sustains a severe electric shock. Ali, a
plasterer, falls when scaffolding on which he is standing collapses and he breaks both legs. Rosa, an architect who is
visiting the site to consult on amendments being made to the plans, is hit on the head by a falling tool. She was not
wearing a hard hat. Later, Max, a thief, breaks into the site one night with the aim of stealing copper piping, despite
the fact that the fence displays a number of signs stating “Danger, do not enter”. He falls into an unguarded pit in the
grounds, injuring his arm and destroying his expensive mobile phone. Advise the parties.

Answer Guide:

1) Debby v EHI & Highrise: Main issues for discussion include S2(3)(b) OLA 1957, since Debby is a skilled visitor.
Being an electrician this may be a risk associated with her calling: Roles v Nathan, Ogwo, Salmon, Naeme, Williams.
Injuries are clearly due to state of premises, type of injuries are easily recoverable on the facts, she is a lawful visitor
and the place amounts to a premise. She is also owed a duty clearly as a lawful visitor. It must be noted that EHI and
Highrise are both suitable occupiers: S1(2) OLA 1957, Wheat v Lacon, AMF International v Magnet Bowling. EHI
and Highrise may raise volenti: S2(5) OLA 1957 but there is no evidence of willing acceptance of risk.

2) Ali v EHI & Highrise: Main issues for discussion include firstly, in the claim against EHI, whether they may rely on
S2(4)(b) OLA 1957, that the fault with the scaffolding is due to poor execution of work by Highrise, the main
contractors, applying Haseldine v Daw, Ferguson v Welsh, Bottomley v Todmorden. Further, it must also be
discussed whether Ali will be considered a skilled visitor and whether both EHI and Highrise may rely on S2(3)(b)
OLA 1957 to negate liability. The remaining issues discussed for Debby should also be mentioned for Ali.

3) Rosa v EHI & Highrise: similar issues for discussion as Ali, but with the addition of the discussion of contributory
negligence because she did not wear a hard hat: S2(3) OLA 1957,

4) Max v Highrise & EHI: his claim will be brought under OLA 1984 – clearly a trespasser – S1(3) (a), (b) & (c) OLA
1984 will be discussed – no duty will be owed applying Tomlinson, Rhind, Swain, Ratcliffe. Given the notice of
warning, in any event, duty will be discharged under S1(4) & S1(5) OLA 1984, Westwood v Post Office. The
occupiers may also rely on the volenti defence in S1(6) OLA 1984, Keown, Westwood.

2020 (A) Q2
Whitehaven Primary School is having its termly Open Evening, when families can come into the school, inspect the
work that the pupils have been doing and talk to the teachers about their children’s progress. Sally and Robert arrive
with their children, Alice aged seven, a pupil at Whitehaven, and Charlie aged three. On the front door, they see a sign
stating, “Please take care on these premises. Children should be supervised at all times. Whitehaven accept no
responsibility for loss or injury howsoever caused”. While waiting in the queue for Alice’s teacher, Alice’s parents begin
chatting to friends. Charlie wanders off down the corridor, finding his way into the school kitchen, which is dark. He
hits his head on the sharp corner of a serving table and sustains a nasty cut. Meanwhile, Sally has noticed Charlie’s
absence and begins to search for him. As she hurries towards the kitchen, she passes a small warning cone on the floor
stating, “floor slippery when wet”. This was displayed by “Kleen-eez”, a firm employed by the school to do the cleaning
each night. Sally slips on the damp floor, breaking her ankle. Outside her classroom, Alice becomes bored and begins
to break off and chew small pieces of cardboard from an artwork displayed on the wall; she quickly develops a severe
stomach upset. Robert picks up Alice and takes her to sit on his lap on a small chair, which collapses under their weight.
He suffers a back injury and his suit is torn. Advise Robert, Sally, Alice and Charlie.

Answer Guide:

1) Robert and Sally may bring action against the school in respect of the children’s injuries respectively
a) Charlie:
® Injuries occurred due to the state of premises: S1(1) OLA 1957, OLA 1984

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 ® Whitehaven is the proper occupier, having sufficient degree of control over the premises: S1(2)
OLA 1957, OLA 1984
® The place of injury is a premise: S1(3)(a) OLA 1957, S1(2) OLA 1984
® Physical injuries are recoverable under both Acts (S1(3)(b) OLA 1957, S1(8) OLA 1984))
® Charlie may firstly be argued as a trespasser – the kitchen is not an area open to visitation even
during the open day event. If this is accepted, his claim will be discussed under OLA 1984. If,
however, it is accepted that he entered as a lawful visitor having implied permission (S1(2) OLA
1957, Lowery v Walker), and further that his entry into the kitchen was not properly and effectively
restricted or prevented, then he remains a lawful visitor and may be discussed under OLA 1957:
Gould v McAuliffe.
® Under OLA 1984: no duty may be owed. Even if S1(3) (a) is satisfied, (b) and (c) will not be
satisfied – no reason to think that the child will be in the kitchen or that there is any danger in the
kitchen for which protection is needed because of the notice given (Tomlinson, Swain). In any event
during the open evening, parents were told to supervise their children. This notice will be sufficient
for the school to discharge its duty to an unlawful visitor: S1(4), S1(5) OLA 1984.
® Under OLA 1957: duty is owed under S2(1) OLA 1957, and the duty is to take reasonable care. In
particular, S2(3)(a) OLA 1957 applies – the school will not be found in breach parental
responsibility: Phipps v Rochester, Simkiss v Rhonda BC, Bourne Leisure v Marsden
® The school will try to exclude liability under S2(1). But applying UCTA 1977, S1(3) & S2(1),
liability cannot be excluded – the school is a business premise nonetheless. Ultimately, Whitehaven
is unlikely to be found liable.

b) Alice:
® Similar discussion as for Charlie above, however, the claim may be dismissed on the basis that
Alice’s injuries stem from her own careless actions rather than the state of premises per se. It may
be found applying Tomlinson, Keown, Siddorn v Patel, that if injuries do not stem from the state
of premises or anything done by the occupier to render the premise unsafe, liability may not arise
at all. If, however, the facts can be distinguished given Alice’s age (the children in the cases above
were much older), then the claim will proceed under OLA 1957 – the discussion being similar to
the discussion above for Charlie. Ultimately, due to parental responsibility the claim may fail, unless
it can be argued that the artwork were somehow an allurement and greater care should have been
taken in the circumstances: Jolley v Sutton LBC, Taylor v Glasgow Corporation.

2) Sally may bring action against the school for her injuries.
® She is a lawful visitor on the facts, her injuries are recoverable under both Acts, they were caused by the state
of premises and occurred on premises. Whitehaven is also the proper occupier for her injuries. However, the
issues for discussion concerning Sally, is whether the warning is sufficient (a notice was placed to advise
caution) – S2(4)(a) OLA 1957, Rae v Mars, Roles v Nathan. Further, it needs to be considered, whether
Whitehaven may rely on S2(4)(b) OLA 1957 that this was the result of faulty work by Kleen-eez, the
independent contractor employed to clean the school – facts are similar to Woodward v Mayor of Hastings
but distinguishable in that on the facts, a caution notice was given. Whitehaven may also raise volenti (S2(5)
OLA 1957, White v Blackmore), but will fail to rely on volenti. Instead, they may rely on contributory
negligence, that Sally should have been more careful (however, the floor was damp, not wet – debatable).
However, they will not be able to exclude duty or liability altogether as discussed above for Charlie because
of UCTA 1977.

3) Robert may bring action against the school for his injuries and torn suit
® His position is similar to Sally’s as discussed above. However, with regards to Robert, Whitehaven may be
able to successfully argue that the duty was not breached – it was a school – smalls chairs will be present
around the premises – this is a feature of the premise – Robert may be expected to sit on a different chair,
more suitable for adults – applying Edwards v Sutton LBC, Tedstone v Bourne Leisure, Cole v Davies-
Gilbert, Whitehaven may not have fallen below the reasonable standard of care. Further, claiming under
OLA 1957, he may recover damages for the torn suit as well since property damage is recoverable, and while

8
 liability may not be excluded for the physical injury, it may be excluded for the torn suit subject to the test of
reasonableness. If liability is established, damages may be reduced on account of his own contributory
negligence (S2(3) OLA 1957). Ultimately, however, no liability will arise due to the failure to establish
breach.

2020 (B) Q2
It is Interview Day at Summit University. Prospective students from around the country come, some with their families,
to tour the campus and many will be interviewed by admission staff in their chosen school of study. Khalid is applying
to study medicine and arrives for the day accompanied by his elderly grandparents Omar and Fatima and his little
sister Lilah, aged five. While they wait for Khalid to be called to interview, Omar decides to inspect one of the
laboratories. Despite the fact that the door is closed and bears a sign stating “Caution Advised”, Omar enters and begins
turning on taps. One emits a dangerous gas which causes Omar to suffer a severe cough and breathing difficulties. In
the meantime, Lilah gets bored and begins to swing on a curtain. When the curtain rail gives way, she falls, cutting her
head and tearing her dress. Fatima goes to seek first aid and, on the stairs, trips on a loose section of new carpet,
spraining her ankle. The carpet was recently fitted by “Textures”, a local firm which undertakes a significant amount
of work for the university. The letter inviting Khalid to interview included the statement: “Summit University regrets
that it cannot accept liability for loss or damage incurred on the premises”. Advise Omar, Fatima and Lilah.

Answer Guide:

1. Omar – inhaled dangerous gas, suffers severe cough and breathing difficulties – will sue the university (they are the
proper occupier: S1(2) OLA 1957 & 1984). He will fall under OLA 1984 – does not have implied permission to
enter the laboratory – may fail under OLA 1984 (S1(2) OLA 1957, contrast with Lowery v Walker). Even though it
was Interview Day, families are allowed on the campus, and tours of the campus may be made, the laboratory door
was closed with a sign stating caution is advised. It is not customary to enter a place like a science lab in a university
unaccompanied by staff. The university will also argue that injury was due to his own act of turning on the tap and
as such may not fall within the ambit of protection under the OLA 1984 (S1(1) OLA 1984, Keown, Tomlinson,
Ratcliffe). In any event, no duty will be owed to Omar. There is danger on the premise (S1(3)(a)), and Omar will
argue that there are reasonably grounds to believe that someone like him may come into the vicinity of danger, since
visitors would be touring the campus on Interview Day (S1(3)(b)). However, Omar inspected the lab on his own,
unaccompanied by a staff of the university. As such, his presence in the lab is not anticipated: Swain v Natui Ram.
Also, the risk of danger is not one for which protection may be required, where a notice has already been placed at
the door advising caution – the University may expect that visitors will not simply turn on taps in the laboratories.
S1(3)(c) is not satisfied, and applying Tomlinson no duty will be owed. In any event, the sign posted on the door
would be sufficient to discharge duty to a trespasser: S1(4), S1(5) OLA 1984, Westwood v Post Office, Ratcliffe v
McConnell. Omar may not rely on the fact that he is an elderly person and thus a vulnerable visitor at the university,
because he did trespass into the laboratory: G4S Care & JS v Manley distinguished as the claimant in that case was
an inmate and lawful visitor in that case.

2. Lilah – cut her head and tore her dress while swinging on the curtain rail – she will also sue the university. Since she
was a visitor at the time, her claim will be considered under OLA 1957. The university will argue that where injury
is caused by the visitor’s own careless, unreasonable or unauthorized actions, it will not fall under “dangers due to
the state of premises, things done or not done on them” – S1(1) OLA 1957, and therefore that liability cannot arise
under the Act: Keown, Kolasa, Tomlinson, Geary. Even though Lilah is a child, her grandparents and Khalid with
whom she visited the University, may be expected to prevent her from acting as she did. Lilah may not rely on
S2(3)(a) that the university should have taken greater care anticipating that children will be on the premise and thus
that greater care should have been taken. Even though children are expected to be on the premises during Interview
Day, and the curtain may be an allurement for a bored young child (Jolley v Sutton LBC – ingenuity of children
finding ways to entertain themselves), parents may be expected to watch over young children and keep them from
danger: Phipps, Simkiss. The university’s duty is not greater than that of Lilah’s family. Thus, no liability will arise
in respect of her injury and damage. Even if her claim falls under OLA 1984 (trespasser who carried out unauthorized
act on the premise, like Tomlinson and Harvey), the claim will fail. There was no danger on the premise who which
protection was required and there are no reasonable grounds to know or believe that she would do as she did –
S1(3)(a), (b) and (c) will not be satisfied, Keown, Tomlinson.

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 3. Fatima – sprained her ankle due to a section of the carpet that came loose – injury due to premises – she was a visitor
at the time – she may sue the University under OLA 1957. The common duty of care is owed to her (S2(1), S2(2)).
The university may fall below the duty of care – she is an elderly person and the danger is not apparent: English
Heritage v Taylor, G4S Care. But the University will argue that they are not liable as it is the fault of the independent
contractor ‘Textures’. Relying S2(4)(b), the University will argue that the entrustment of work to the contractor was
reasonable, that they checked that the contractor was competent and that work was done properly. But this doesn’t
seem to be the case as the loose carpet, which can easily be noticed upon inspection, was not remedied but left in that
state (Woodward v Mayor of Hastings). The University will remain liable. The defences of volenti and contributory
negligence cannot be argued here. No evidence of the same on Fatima’s part – she is also an elderly person.

4. Omar and Lilah’s claims will fail but Fatima may succeed. However, relying on S2(1) OLA 1957, the University
will argue that liability is excluded given the notice that it does not accept liability for injury or damage on the
premise. The notice will not apply for personal injury (UCTA 1977 since the university will be regarded as a business
premise). As such, the University will remain liable for Fatima’s injury.

2020 (Resit A) Q2
Barbara and Arthur have opened their extensive garden to the public. They charge a small entry fee which they intend
to donate to charity. Stella and her friend Norah enter through the front gate and fail to read a sign stating, “Please
take care on these premises. Children should be supervised at all times”. Walking around the small pond, Stella trips
on a hose, spraining her ankle and hitting her head on a stone. The hose was left by “Waterfalls”, a pond maintenance
contractor employed by Barbara and Arthur. Norah leaves Stella on a chair in the picnic area and goes to find first aid.
She mounts the steps to the house, passing a sign stating, “Take care, the handrail is loose”. The handrail then breaks
in Norah’s hand, causing a nasty cut. Mohamed, aged three and visiting the garden with his parents, becomes ill when
he begins to eat purple berries from a bush in the small picnic area. Advise Stella, Norah and Mohamed.

Answer Guide:

1. Stella’s claim:
• The injury is due to the premises (hose and stone in the garden) and Stella was a lawful visitor at the time
(presumably paid the entry fee to visit the garden) – the action may fall within OLA 1957, S1(1), Dunster v
Abbot & S1(2)
• Barbara and Arthur are the proper occupiers and will be the defendants here – sufficient degree of control
over the premises: S1(2) OLA 1957, Wheat v Lacon
• The place is also a premise: S1(3)(a) OLA 1957
• Common duty of care is owed to ensure reasonable safety on the premise: S2(1), S2(2), Edwards v Sutton
LBC, Cole-Davies v Gilbert – B & A may not have fallen below the standard of care if it can be shown that
this was simply an unfortunate accident and that such incidents do not usually occur.
• Warning was also given – the sign at the entrance. For a danger such as tripping over the hose, the general
warning given to “take care on the premises” is arguably sufficient.
• B & A will also rely on S2(4)(b) that the independent contractor, Waterfalls, a pond maintenance is
responsible for the hose and stone causing Stella’s injury. Whether duty will be adequately discharged
depends on whether it was reasonable to entrust work to Waterfalls – it arguably is, on the facts. Further, B
& A must also have checked that Waterfalls were competent and their work was done properly. They may
not have checked that the work was done properly; if they had checked, they would have noticed the hose
and put it aside – thus, the duty is not adequately discharged and they may be liable. There is no notice of
exclusion of liability for them to raise the S2(1) defence. They also may not be able to rely on the volenti
defence in S2(5), Stella did not know of the danger. However, if it can be shown that Stella was not looking
carefully while walking around the pond, she may be found contributory negligent: S2(3)(b).

10
 2. Norah’s claim:
• Norah was injured by the state of premises too (handrail) and was a visitor at the time – thus will claim under
OLA 1957 too. A duty of care is owed to her too. There is no notice or indication that she is restricted from
using the stairs – in fact the presence of the sign at the stairs suggests that visitors may use the same.
• B & A are also the proper defendants as discussed above for Stella
• However, B & A will argue that sufficient warning was given – the sign is arguably clear – applying S2(4)(a),
duty would be regarded as adequately discharged, no liability will arise.
• Norah’s claim will fail

3. Mohamed’s claim:
• Mohamed was injured by the condition of the premise being unsafe too – the poisonous berries
• Since he is a lawful visitor at the time he would also sue B & A, the proper occupiers in respect of the berry
bush
• He is owed the same duty of care argued above for Stella and Norah (S2(1), S2(2) OLA 1957), but greater
care should have been taken on account of the fact that Mohamed is a child, and children are known to visit
the garden: S2(3)(a). Especially when there is an allurement on the premise, like the berry bush, B & A can
be expected to take greater precaution such as putting up a fence around the bush so that Mohamed may not
be able to reach the berried: Glasgow Corporation v Taylor.
• But here, B & A will argue that they have indicated that children should be supervised at all times. Mohamed
who is only three, should have been supervised by his parents and contrasting with Taylor, applying Phipps
v Rochester and Simkiss v Rhonda BC instead, B & A may not be found liable for Mohamed’s poisoning.
• Mohamed’s claim will fail

2020 (Resit B) Q2
Tomasz and Maria arrive for an afternoon at the City Museum, with their children Jack, aged seven, and Sophia, aged
three. They purchase a museum floor plan, which states at the bottom, “The City Museum regrets that we are unable
to accept liability for loss or injury, howsoever caused”. There are many child-friendly activities in the museum. While
Jack is playing on one of the games in the Children’s Gallery, Sophia wanders off and finds her way into a storage space
next to the gallery. It is dark and, in her confusion, Sophia puts her foot through an empty glass case which has been
left on the floor, suffering serious injury. Tomasz runs through the museum searching for Sophia and trips over a brush
which has been left on the stairs by “Sparkles”, a cleaning firm contracted by the museum, spraining his ankle. Jack
needs the toilet and when Maria takes him to the specially designed children’s toilet, she hits and injures her head on
the entrance. There is a sign on the door saying, “Be aware of the low doorway”. Advise Maria, Tomasz and Sophia.

Suggested Answer (1082 words):

Maria, Tomasz and Sophia will institute claims against the City Museum under OLA 1957 and OLA 1984 accordingly.
Sophia was injured due to the state of premises, namely the empty glass case left on the floor, and will be able to bring her
action within S1(1) of OLA 1957. City Museum is the proper occupier, in view of control and occupation of the premises
(S1(2) OLA 1957, Wheat v Lacon). Sophia would be regarded as a lawful visitor in that she had permission to be on the
premises (S1(2) OLA 1957), and entry to the storage area where she was injured was not adequately restricted (Gould v
McAuliffe). She clearly had access, there were no signs or a closed door or barriers. The place is also a “premise” as it is a
fixed structure for which the occupier may be liable (S1(3)(a) OLA 1957).

She would remain a lawful visitor to whom a duty of care would be owed pursuant to S2(1) OLA 1957. Pursuant to
S2(2) OLA 1957, the duty is to take reasonable care to ensure that the visitor is reasonably safe in using the premise for its
permitted purpose, but where the visitor is a child, the occupier must anticipate that children are less careful than adults and
extend adequate protection as the circumstances require: S2(3)(a) OLA 1957. Where the premise is frequented by children,
the occupier can be expected to greater precaution: Perry v Buthins. Here, the museum had many child-friendly activities and
a children’s gallery suggesting that the presence of children in the vicinity is common. Children wandering around is also
common and to leave the storage area open to their access would appear to fall below the reasonable standard of care applicable
to children in this case. City Museum will argue that Sophia’s parents had with them, the museum floor plan and should have
kept her from wandering into the storage area, relying on the doctrine of parental responsibility. However, it is also possible to

11
say that in the child-friendly City Museum, it is common for children to evade even the most careful parents and parents are
entitled to expect an unsafe portion of the premise like the storage room to be properly sealed against entry. The ‘parental
argument’ responsibility may not shift responsibility to Sophia’s parents here (Bourne Leisure v Marsden). Further, they may
argue that City Museum failed to take adequate steps to warn against or close off the source of danger (storage room), by
putting up barriers to block entry, as required by S2(4)(a) OLA 1957, in discharging their duty (Rae v Mars). The danger was
not obvious either (English Heritage v Taylor, contrast with Darby v National Trust). However, City Museum will argue that
they have disclaimed responsibility in the floor plan and pursuant to S2(1), may not be liable. But because the floor plan was
paid for, the museum could be regarded as a business premise that comes within the requirement of S2 UCTA 1977, that
liability may not be excluded for death or personal injury here. City Museum will be found liable for Sophia’s injury.

Alternatively, it may be argued that there is no implied permission for the museum visitors to enter the storage area.
On this basis, Sophia, may in law, be regarded as a trespasser and her claim may be considered under OLA 1984. Since the
injury was due to the state of premises it would fall within the ambit of the 1984 Act but liability is unlikely to arise, since duty
of care may not be owed in the circumstances. Even though there is danger on the premise (S1(3)(a) OLA 1984), whether City
Museum knew or had reasonable grounds to believe that Sophia was in the vicinity of danger is doubtful (S1(3)(b) OLA 1984,
Swain v Natui Ram). Thus, any claim by Sophia is only likely to succeed if brought under OLA 1957.

Tomasz was also injured due to the state of premises (S1(1) OLA 1957), while being present on the same premises
as a lawful visitor (S1(2) OLA 1957), and as such will be owed the same common duty of care as stated above. He tripped
over a brush left by ‘Sparkles’ an independent contractor. City Museum would argue that injury was due to ‘faulty execution
of work by independent contractor’, and as such that liability cannot arise on their part: S2(4)(b) OLA 1957. However, under
the section, the occupier will only be absolved of liability if it was first reasonable to entrust work to the contractor, and the
occupier checked that the work was done properly and that the contractor was competent. The cleaning of the museum is
arguably reasonable to be entrusted to Sparkles, but City Museum could have checked and ensured that the cleaning was done
properly, including putting away the brush, rather than leaving it in the way of visitors. City Museum may not rely on S2(4)(b)
and will remain liable: Woodward v Mayor of Hastings. Liability may not be excluded for Tomasz’s injury as argued above
for Sophia, because of UCTA 1977. However, City Museum may argue that Tomasz was contributory negligent in that if he
had looked before running, and kept watch of his daughter in the first place, the injury would not have occurred. He may have
contributed to his own injury. Applying S1(1) Law Reform (Contributory Negligence) Act 1945, damages awarded to
Tomasz may be reduced.

Maria would sue in respect of the head injury when taking her child to the children’s toilet. The injury is also caused
by the state of premises and Maria was a lawful visitor at the time, since she was taking her young child to the children’s toilet.
A duty of care is similarly owed to her in the circumstances and cannot be excluded as discussed above for Tomasz and Sophia.
However, here, the duty is likely to have been discharged accordingly as adequate warning was given. The facts state that a
notice was placed saying “be aware of the low doorway” and the notice was placed on the door, which would be obvious to an
adult like Maria. The danger would also be obvious and in the circumstances, City Museum may not be liable for Maria’s
injury (Darby v National Trust).

In conclusion, Sophia and Tomasz would succeed in their claims against City Museum for personal injuries. Both
their injuries are compensable under the OLA 1957 but Tomasz’s damages is likely to be reduced on account of contributory
negligence on his part.

2019 (A) Q2:

Arjun operated a restaurant in Patrick’s large Victorian house. He decided to have the electrical wiring in the
restaurant replaced. Sally agreed to carry out the work and before commencing the job, she placed signs on the
railings outside the restaurant warning of the danger of loose cable wire on the external steps to the front door. The
sign also stated that those entering the building did so at their own risk. Jacob, a delivery man, lost his footing on
the steps, breaking his arm and damaging his valuable Rolex watch. During the lunch service Wanda, the 3-year-
old daughter of two customers, who was playing while her parents finished their meal, found her way to a storage
cupboard and badly cut her face when she tripped over a wire as she entered. Feeling upset by the accidents, Sally
went home early with a headache, leaving a live electrical wire in a very dangerous condition. That night after closing
time, Tony, a thief, broke into the restaurant and suffered an electric shock when he accidentally touched the wire.
He was badly burned but managed to phone the emergency services. Gloria, one of the paramedics who arrived to

12
help Tony, suffered cuts and a torn uniform on a jagged edge of the external railings of the property before she
climbed the stairs to the accident scene. Advise Jacob, Wanda, Tony and Gloria.

Answer Guide:

1. Question relates to occupier’s liability – OLA 1957 & OLA 1984 will apply

2. The Acts govern the liability of an occupier for injuries caused by the state of premises – OLA 1957 (lawful
visitors) and OLA 1984 (non-visitors)

3. On the facts, since all injuries were caused by the condition of the premises, claims will be brought under the
relevant statutes

4. Claims:

a) Jacob v Arjun, Patrick & Sally (broken arm, damaged Rolex, lost footing on steps)
® Was J’s injury caused by the state of premises, anything done or not done on the premises (S1(1)
OLA 1957 & OLA 1984) – J’s injury was caused by the state of premises and things done on them
(the premises had loose cables on the external steps to the front door, Sally had been carrying out
work on the premises = work done). J’s claim will still fall within the ambit of the OL legislations
® A, P & S may all be regarded as occupiers: S1(2) OLA 1957, 1984 – all have control over the
premises – more than one party can be an occupier according to Wheat v Lacon – manager and pub
owner. According to AMF International v Magnet Bowling - sufficient degree of control over the
particular part of the premise – thus J may bring a claim against all three
® J is clearly a lawful visitor on the facts: S1(2) OLA 1957 – as a delivery man he would have
permission to enter, alternatively he may fall under S5(1) OLA 1957 – entering pursuant to a
contract. His claim will be dealt with under OLA 1957
® The place of injury is a fixed structure, and as such is a premise: S1(3)(a) OLA 1957
® J will be owed a common duty of care, except in so far as duty is excluded: S2(1) OLA 1957 – OTF:
S placed a notice excluding duty (those entering the building did so at their own risk) – whether the
notice would apply and exclude liability, depends on whether the place is a business premise. Here
it is, and the exclusion notice would be subject to UCTA 1977 – when applied, it will be found that
S will not be able to exclude liability for J’s physical injury, but may be able to exclude liability for
the damage to his Rolex watch. The other occupiers would continue to owe a duty
® The standard of care – take reasonable care to ensure visitor is safe in using the premise for its
permitted purpose: S2(2) OLA 1957.
® The standard of care applied to J would take into account that he is a skilled visitor – person entering
in the exercise of his calling and as such may be expected to guard against special risks ordinarily
incident to his calling: S2(3)(b) OLA 1957, Roles v Nathan – this is likely to apply here – it a risk
common to work of a delivery man – may draw analogy with Naeme v Johnson – the occupiers
may not be liable
® In any event, warning has been given – arguably sufficient to keep visitors reasonably safe – this
would mean that S may be taken as having discharged her duty as one of the occupiers: S2(4)(a)
OLA 1957. Notices were placed by S at the railings before the entrance – this is reasonable and
obvious to all who enter, even before they get to the front door
® A would argue that duty had been discharged in that A had engaged S as an independent contractor
to carry out electrical work. Provided A can show that the fault that caused J’s injury was due to
faulty execution of work by a contractor, and that it was reasonable to engage an IC, and that A took
steps to ensure that the IC was competent and that work was carried out properly, then A would have
discharged his duty, and will not be liable for J’s injury: S2(4)(b) OLA 1957. A would argue that it
was reasonable for him to engage S’s services since he is unable to carry out the electrical wiring
repairs on his own, also A would argue that he satisfied himself that S was, and that since the type

13
 of work done was technical in nature, A could not be expected to oversee and ensure that S’s work
was properly done: Haseldine v Daw.
® If it can be shown that S had used an unsafe system of work, if this was known to A and if he could
have intervened to make the premise safe, then S2(4)(b) will not assist A, he would not have properly
discharged his duty. However, no liability if occupier did not know/ could not be expected to know:
Ferguson
® Further in Green v Fiberglass (1958) the occupier was not liable where he cannot be expected to
second-guess the work of the IC, or equip himself with the particular skill of the IC just to check if
the IC has done the work properly.
® However, while A cannot be expected to inspect the electrical work done (Haseldine, Green,
Ferguson), the danger in the form of loose cables left lying around at the front entrance is something
that is obvious to A and A could have taken steps to ensure that the cables are moved to the side, to
avoid inconvenience or danger to J: Woodward, Ferguson
® Thus, A may have failed to discharge his duty and may be found liable
® P on the other hand, like the council defendant in Ferguson is unlikely to know of S’s work on the
premise, and indeed did not engage S’s services. In the circumstances, due to lack of knowledge in
the first place, P cannot be liable, and will be shielded by S2(4)(b)
® Therefore, based on the above discussion, S and P may be not be liable for J’s injuries, but A is
likely to be liable.
® A would want to raise the defence of volenti non-fit injuria, arguing that J would clearly have been
aware of the danger of falling at the doorstep since there were loose cables lying around and accepted
it: S2(5) OLA 1957 – however it cannot be said that J willingly accepted the risks involved – he had
no option but to deliver goods at the time – he was carrying out his duty as delivery man at the time
– no willing acceptance of risk: White v Blackmore
® Alternatively, A may want to rely on the defence of contributory negligence: S2(3) – however it is
unclear on the facts, whether J had been careless by failing to notice the cables – if he had not noticed
the cables despite the signs, he would be found contributory negligent and damages will be reduced.
A may be liable for J’s broken arm and Rolex watch damage (S1(3)(b) OLA 1957 – property damage
is recoverable by lawful visitors)

b) Wanda v Arjun, Patrick & Sally (cuts on face after tripping on wire when entering storage cupboard
® W’s injury was also caused by the state of premises – tripping over a wire (S1(1) OLA 1957, S1(1)
OLA 1984) – claim may be brought under either one of the Acts
® As discussed above, A, P & S may all be occupiers – all have sufficient control over the area inside
the restaurant where the cupboard was: S1(2) OLA 1957 & 1984, Wheat as discussed above
® W will be regarded as a trespasser in the circumstances – it is clear that the storage cupboard of a
restaurant is not meant to be accessed by guests at the restaurant – no opened to customers –
restricted area, and notices are not required, it would be considered obvious: The Calgarth
® The place of injury amounts to a premise – fixed/movable structure: S1(3)(a) OLA 1957
® W’s claim will be discussed under OLA 1984
® S1(3)(a), (b) & (c) – A, P & S may owe a duty only if the occupiers knew or had reasonable ground
to believe that there was danger on the premise (the cable), that W would come into the place of
danger and that the risk was one that needed protection. Applying Tomlinson, there is reasonable
grounds to know/ believe that there may be cables lying by the cupboard – the place was in the midst
of electrical work being done. However, applying Keown, Swain and Siddorn there are no
reasonable grounds to think that a child would wander into the storage cupboard – young children
can be expected to be to be controlled or kept from danger by their parents – drawing analogy to
Phipps v Rochester – parental responsibility to prevent young children from wandering off into
dangerous places unaccompanied by parents. Although the risk might be one that needs protection,
duty is unlikely to be satisfied – even if (a) and (c) may be satisfied, (b) is not, no duty will be owed.
® The occupiers will not be liable for W’s injuries

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 ® Hypothetically, if at all, the court takes the view that the storage cupboard area was accessible and
entry to the cupboard was not restricted/insufficient notice, W may be regarded a visitor at the time:
Gould v McAuliffe
® OLA 1957 will apply – as discussed above, S2(1), S2(2) discussed above will apply – duty is not
excluded in the circumstances – physical injury (UCTA 1977)
® To further define the reasonable standard of care in the circumstances, S2(3)(a) OLA 1957 applies
– occupier must be prepared that children are less careful compared to adults, and greater precaution
must be taken for a child’s safety, especially if there was great danger on the premises, and the child
was allured to the danger – doctrine of allurement arguable here: Glasgow Corporation v Taylor,
Jolley v Sutton LBC
® However, since W is so young, parental responsibility is likely to negate any responsibility on A, P
or S’s part – they will not be regarded as having fallen below the standard of care: Phipps, Simkiss
v Rhonda. Even if the court finds that W’s parents are not at fault for being unable to control W
from wandering off, and that parental responsibility could not apply on the facts, the occupiers here
are still unlikely to be liable, as they could not foresee the harm to W, and that there aren’t any
further precautions they could be expected to take: Bourne Leisure v Marsden
® A, P & S are unlikely to be liable – did not fall below reasonable standard of care in the
circumstances – highly likely that the parental responsibility argument will negate liability on their
part

c) Tony v Sally (badly burnt because of live electrical wire)

® T’s injury is also clearly because of the state of premises – live wire left in a dangerous condition
by S – claim falls within ambit of occupier’s liability: S1(1)
® S would be the more appropriate occupier – in relation to the live wire, she is the only one with
control: Ferguson v Welsh A & P would not have known and do not have control of those
circumstances – S would be the proper occupier: S1(2)
® T would be a trespasser at the time – broke in to steal: Harvey v Plymouth CC –clearly not an
invitee/no permission and committed an illegal act – OLA 184 applies
® The place of injury amounts to a premise: S1(3)
® S1(3)(a), (b) & (c) OLA 1984 – no duty of care will be owed – presumably, there is knowledge of
danger on the premise (a), and the risk is one that needs protection (c) (Platt v Liverpool), T’s
presence is not known, and there are no reasonable grounds to believe he would be in the vicinity
of danger: Swain, Donoghue v Folkestone, Rhind v Astbury – no duty
® However, if duty can be established, S is highly likely to be found in breach – unreasonable to leave
the live wire in a dangerous way, and absence of precautionary notices: S1(4), S1(5) OLA 1984 –
contrast with Westwood v Post Office – the notice on the railings only refers to the cables at the
front door and not to the danger inside the restaurant – would not be sufficient
® In any event, the notices on the railing placed by S stating that visitors enter at their own risks might
absolve S of any liability – S may argue the volenti defence applies: S1(6) OLA 1984 – T accepts
risks willingly – however this will not succeed – T is unlikely to know the particular risks
® Ultimately, S will not be found liable – no duty owed

d) Gloria v Patrick (cuts & torn uniform – jagged edge of railings)

® G’s injury is due to the state of premises – jagged edge of railing: S1(1)
® P is the proper occupier – A only runs the restaurant inside, and S does the electrical work only, and
since P owns the property and railings, he is the one with control over the railings: S1(2)
® G would be a lawful visitor – authorized to enter to effect rescue, would also be entering under legal
right: S2(6), implied permission: Lowery
® The place is a premise: fixed/movable structure: S1(3)(a)
® G would be owed a duty, and the standard of care is that of reasonableness: S2(1), S2(2)
® However, G would be regarded as a skilled worker/ person entering to exercise calling – may be
expected to take care for own safety against special risks ordinarily incident to her calling: S2(3)(b),
Roles v Nathan, Neame v Johnson – drawing analogy to Neame it is argued that the risk

15
 encountered by G is ordinarily incident to the calling of a paramedic – P may not be liable for her
losses and injuries
® P will not be found in breach in the circumstances – even though property damage is recoverable
by lawful visitors (the torn jacket here): S1(3)(b) as well as the physical injuries, G’s claim will fail
because of S2(3)(b)

2019 (O) Q5:

Cedric has recently bought a country estate, which includes a large house, a lake and a disused chapel. After paying
a high purchase price, Cedric has no money left to undertake any of the necessary repairs to the house. In particular,
the stairs to the basement are uneven and the window frames on the first floor are rotten. Nevertheless, Cedric
decides to hold a party for his friends. He warns them not to go down to the basement and also stipulates that they
must take extra care if going up to the first floor. Arjun, aged seven, becomes bored with the party and decides to
jump down the stairs to the basement. Unfortunately, he trips on the stairs and falls down into the basement,
breaking his arm. Davina, who has been drinking excessively, decides to search for the toilet. On climbing the stairs
to the first floor, she leans against a window. The rotten frame cracks and Davina falls through the window into a
bush below. Miraculously she suffers no injury but her designer gown is ruined. Meanwhile Ben and Sharon decide
to leave the party and wander off to the disused chapel. There, Ben decides to swing on the bell rope. In the dark,
he does not see the sign saying, ‘Danger: Do Not Touch’, and on pulling the rope, a large part of the ceiling falls on
top of him, causing serious injury. The quickest way back to the house is across the lake; therefore, to get help,
Sharon jumps into the lake where sadly she drowns in the deep water. Advise the parties.

Suggested answer (1940 words):

To recover compensation, parties must try to establish liability under either Occupiers’ Liability Act 1957 or
Occupier’s Liability Act 1984. The causes of action that arise from the facts are as follows:
i) Arjun (A) v Cedric (C) – broken arm when jumping down stairs to basement (uneven stairs)
ii) Davina (D) v Cedric (C) – ruined designer gown after falling through the window (rotten window frame)
iii) Ben (B) v Cedric (C) –serious injury when pulled on rope (ceiling collapse)
iv) Sharon (S) v Cedric (C) – drowned when attempting to get back to the house to get help (lake)

It must first be shown that the injuries were caused by the state of premises, anything done or omitted to be done
on them: S1(1) OLA 1957 & S1(1) OLA 1984. On the facts, injuries have all been caused by the state of premises and
may be brought under either OLA 1957 or OLA 1984.

Secondly, it must be shown that the defendant, C, is an “occupier” who may be sued under the OLA 1957 or OLA
1984. An “occupier” is anyone by virtue of occupation of the premise, has control over the premise: S1(2) OLA 1957,
S1(2) OLA 1984. Further in Wheat v Lacon (1966) it was held that anyone who has sufficient degree of control over the
premises would be considered an occupier. C bought the entire country estate that comes with the house, lake and chapel.
He would therefore have the necessary degree of control to be considered an occupier. The place of injury also does
amount to a premise: S1(3) (a) OLA 1957 and S1(2) OLA 1984.

Fourthly, it has to be determined whether the claimants are all lawful visitors or unlawful visitors (trespassers).
S1(2) OLA 1957 provides that visitors are those who have the permission or invitation of the occupier, or icensees, and
visitors include those who would, under common law, be deemed lawful entrants. In Lowery v Walker (1911) it was held
that a person who enters with implied permission may be regarded as an invitee or even a licencee. However, in Anderson
v Coutts (1894) it was held that an occupier may restrict or limit his visitors right/permission/licence to and use the premise.
Where clear notice is given, a visitor who exceeds the restriction will then be considered a trespasser/unlawful visitor. In
Gould v McAuliffe (1941) however, it was held that the claimant remained a lawful visitor even when she entered a
restricted space in search of the toilet for guests, because the restriction in space was not properly indicated using clear
notices. In Harvey v Plymouth CC (2010) it was also held that to commit an unlawful act on the premise could convert
one’s status from lawful to unlawful visitor, even though the premise was one that was open to the public.

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 Here, it is argued that since C did tell his guests not to go down to the basement, A would most likely be considered
an unlawful visitor when he sustained injury on the basement stairs. It was A’s parent’s responsibility to ensure that he
did not wander into restricted areas. Besides, the manner in which A used the stairs might also be considered inappropriate,
which may further cause him to be regarded as a trespasser at the time (The Calgarth). A will be discussed as a trespasser
under OLA 1984 below. As for D, since entry to the first floor was not prohibited, she would probably be a lawful visitor
at the time and place of her injury. Her claim will be discussed under OLA 1957. In relation to B, since there is no mention
of restrictions on entering the disused chapel, B is likely to be a lawful visitor at the time, and his claim will be considered
under OLA 1957. Finally, for S, once again there were no notices prohibiting swimming in the lake, and since according
the facts, nothing was said to prohibit guests from entering the lake, S may also be considered a visitor at the time of
drowning. C’s friends may have assumed that an invitation to the party meant that the entire country estate was open to
them, since C owns the entire country estate.

i) A v C (non-visitor claiming under OLA 1984)

S1(3) OLA 1984 provides that an occupier would owe a duty to a non-visitor provided it can be shown, (a) that
the occupier knew or had reasonable ground to believe that there was some danger on the premise, (b) that the occupier
knew or had reasonable grounds to believe that someone was in the vicinity of danger or may come into it, and (c) that the
was some danger on the premise for which protection was required.

In Tomlinson v Congleton BC (2003) it was held that the fact that the lake was dangerous meant that the defendant
knew of danger on the premise (S1(3)(a)) and the fact that prohibition notices were ignored meant that the defendant had
grounds to believe the claimant was in the vicinity of danger. (S1(3)(b)). However, the fact that the defendant had put up
signs prohibiting people from swimming the shallow lake where the claimant dived and injured himself, meant that the
risk of harm to the claimant did not stem from the premise, i.e. there was no danger on the premise that required protection
– it was the claimant’s actions that brought harm upon himself. Thus S1(3)(c) was not satisfied and no duty was owed.

Further, in Swain v Natui Ram (1995), if the occupier did not have actual knowledge or ‘shut-eye’ knowledge of
the trespasser’s presence on the vicinity, no duty will arise.

Here, C would satisfy the requirements of knowledge of danger (a). But having told his guests not to enter the
basement, he would not know or have reasonable grounds to believe that A entered the vicinity of danger (Swain, Ratcliffe).
It is argued that careful use of the steps may not have resulted in injury, and as such the requirement of ‘danger needing
protection’ in (c) may not be satisfied. Following Keown and Tomlinson, the risk of injury arose not from the uneven
stairs, but A’s act of jumping down the stairs. Thus, duty in S1(3) will not be established. C will not be liable for A’s injury.

ii) D v C (lawful visitor claiming under OLA 1957):

S2(1) OLA 1957 provides that the occupier owes the visitor the same common duty of care. S2(2) OLA 1984
goes on to state that the common duty of care is a duty to take such care as in all the circumstances, is reasonable to ensure
that the visitor is safe in using the premise for the invited/permitted purpose. Here, the danger in question, i.e. a rotting
window frame is in contrast with the kinds of danger seen in Darby, Edwards, and Sutton. It is arguably not obvious
(Darby), and yet not something that simply cannot be avoided no matter how much care is taken (Sutton). It is also not the
result of an unexpected accident as it is clearly known to be dangerous (Sutton). C may be expected to greater care to meet
the reasonable standard, and that simply telling guests to be careful when going to the first floor probably falls below the
reasonable standard.

S 2(4)(a) OLA 1957 provides that an occupier may discharge his duty by giving warning of the danger, provided
the warning is sufficient to keep the visitor safe. C may want to rely on this provision arguing that he did inform his guests
to be careful when going up to the first floor. However, whether this sufficient in the circumstances to keep D safe is
doubted. In Rae v Mars (1990) it was held that exceptional danger requires greater steps of warning such as placing barriers.
Having failed to do so, it would appear that C has not discharged his duty adequately.

In the circumstances, C is likely to be found in breach. However, C is may raise the defence of contributory
negligence, arguing that D had failed to take reasonable care for her own safety: S2(3) OLA 1957. It is likely D was drunk

17
at the time, as she had been drinking excessively, and it is possible that she may have neglected caution on her part when
heading up to the first floor. She may not have been as careful as she was asked to be. D’s damages may be reduced taking
into account her share of fault: S1(1) Law Reform (Contributory Negligent) Act 1945. D would also want compensation
for her designer gown that was destroyed. OLA 1957 allows claims for property damage and D may recover damages for
the same.

iii) B v C (lawful visitor claiming under OLA 1957):

S2(1) and S2(2) OLA 1957 discussed above would also apply to B since he was also a lawful visitor at the place
injury, the disused chapel. Given the nature of the danger being serious, and the fact that the place was dark with no lighting,
it may be said that the level danger was great and highly foreseeable, drawing analogy to G4S Care. C could be expected
to do more, such as closing off the chapel altogether, or telling his friends not to enter it at all. C did none of these and it is
argued that he would be in breach of his duty.

C would argue that he did provide warning of the danger (S2(4)(a), by placing a notice stating ‘Danger, do not
touch’. But the chapel being in a state of disuse, without lighting, would mean that any notice is unlikely to be sufficient
to keep the visitor safe as it is not visible in the dark. This may not be enough for C to argue that he had discharged his
duty. In Roles v Nathan (1963) Lord Denning explained that it would not be sufficient in some cases, to simply place a
notice on the premises stating danger. Applying English Heritage v Taylor (2016) where danger is not obvious, clear and
effective warnings are necessary. As such, C would be in breach.

C may not rely on the volenti non-fit injuria defence in S2(5) OLA 1957 as the danger was probably unknown to
B at the time.

iv) S’s estate v C (lawful visitor claiming under OLA 1957):

S, also a lawful visitor at the time of drowning, would also be owed a duty as stipulated in S2(1) OLA 1957 stated
above. However, C may argue that S’s drowning was in fact caused by her own act and not any dangerous condition of the
lake. C would argue that a duty is only owed to ensure that the premises are safe, and that no duty can be owed in respect
of the visitor’s careless act: Tomlinson. The facts would, however, be distinguished from Tomlinson, since in Tomlinson,
the defendant did prohibit swimming in the lake and the claimant’s injury can properly be said to be caused by his own
reckless act. On the facts, however, S was not prohibited from using the lake and as such, it cannot be said that it was her
own act that caused her drowning. C would still owe a duty for her safety. However, C would argue as in Darby that the
danger of drowning in lake was obvious and as such no precaution was needed on the occupier’s part. C may not be in
breach.

In conclusion, it is submitted that C is likely to be liable for A, D and B’s losses and injuries. The relevant remedy
in the circumstances will be damages, however, as discussed above, D’s damages are likely to be reduced.

2019 (B) Q3:

Freeway, a large supermarket, has two entrances, one at the north, the other at the south end of the building. On
the glass doors of the north entrance there are two small notices at eye level. One reads ‘Freeway regrets it cannot
accept liability for any physical injury suffered on these premises’. The other reads ‘Beware slippery floors’. Abby
and her children Ben, aged two, and Cathy, aged four, enter by the north entrance, which is congested at the time.
Wayne is employed by Freeway as a shelf-stacker and arrives for work by the south entrance. Before Abby begins
shopping she puts Ben into the seat of a new ‘Tots’ Trolley’ designed especially for children. Sometime later Abby
realises that Cathy has wandered off but she continues shopping. Meanwhile Cathy has found her way into the
storage area at the back of the store in a storage area marked out by a single rope one metre high on which hangs a
sign which reads ‘No entrance’. In this storage area, Green & Sons are laying new floors. Cathy begins to play with
loose tiles which she pulls off the still-wet floor. At the sound of smashing tiles Wayne looks across and sees Cathy
playing amongst broken tiles. He rushes towards the entrance of the storage area to remove her, but slips on the wet
floor. Wayne suffers extensive injuries and his suit is badly torn. Abby, hearing the commotion and seeing that
Cathy has cut her hands, quickly pushes the trolley towards the scene. As she enters the storage area, the trolley
topples over and Ben is injured. Advise the parties.

18
Suggested Answer (by Simon Askey, UOL)

Two people to be advised in this scenario, Cathy (C) and Wayne (W), have suffered damage caused by dangers
due to the state of the premises and so OLA 1957 will be discussed. Since C may become a non-visitor, the 1984 Act may
also be relevant. Ben’s (B) damage, when the Tots Trolley falls over, is not because of danger due to the state of the premises
and so negligence liability must be considered.

C and Ware visitors (s.1(2)), they are invitees under the old common law, on the premises for the business benefit
of the occupier. The occupier, under s.1(2) OLA 1957, is person(s) in occupation or control of the premises. ‘Occupier’ is
not defined in the Act and the common law test, based on control, as explained by Lord Denning in the leading case of
Wheat v Lacon, remains relevant. Where someone has control or joint control over premises, such that they should realise
that any failure on their part to use care might result in injury to a visitor then, he said, they are an "occupier". Wheat further
establishes that where an owner employs an independent contractor the owner will usually be sufficiently in control to
remain under a duty towards to their visitors. In AMF v Magnet Bowling both the owner of a building under construction
and the builder doing the work were held liable for damage to a visitor’s property as joint occupiers. Here, it seems that
Freeway (F) was in control of the entire premises and that control was shared with Green & Sons (G) in the storage area
where they were tiling the floor.

We must now consider if F and G breached the common duty of care under s.2(1) and (2). The duty is to keep the
visitor reasonably safe for the purposes for which they were invited. C is in the supermarket to go shopping and W to work.
C is a child aged four and so s.2(3)(a) is pertinent, that the common duty of care requires an occupier to be prepared for
children to be less careful than adults. F is a supermarket; their visitors will include families with children and young
children often wander off. A 1m high rope, combined with a small notice ‘Beware Slippery Floors’ at the north entrance is
under s.2(4)(a) OLA 1957 insufficient to keep C safe. C may not be 1m tall and a proper barrier, as in Rae v Mars, is needed.
It is foreseeable (Jolley v LB Sutton) that children might come into the vicinity, and since the floor tiles were lose, they
might be broken, and cause injury (Cunnigham v Reading) and so F and G should have guarded against it. Abby (A) is also
responsible for protecting her daughter from danger. Devlin J in Phipps v Rochester said that occupiers are entitled to expect
parents protect their children and, in Simkiss v Rhondda Borough Council, the court noted that occupiers should not be
expected to meet a higher standard of care than a parent. A noticed that C had wandered off but simply carried on shopping;
this is irresponsible parenting amounting to contributory negligence (Gough v Thorne).

Although C entered an area signposted ‘No Entrance’ she may not be a trespasser. In Gould v McAuliffe a visitor
who mistakenly opened a gate behind which the occupier kept a vicious dog while looking for a lavatory was held not to
be a trespasser. By analogy C, a child, has mistakenly strayed from the area she was invited to enter. This is not a deliberate
act exceeding her permission to use a staircase by sliding down the bannister (The Calgarth) but a child moving from around
a supermarket, and C could not be expected to realise this was prohibited any more than the claimant in Gould could know
she was going through the wrong gate. In the alternative, if C is a non-visitor, then s.1(3) OLA 1984 would be fulfilled. O
knows of the danger posed by the reflooring; that visitors to the supermarket might stray into the vicinity and so should
offer appropriate protection. In either case C, through her mother, would under both OLAs be able to claim for her personal
injuries. It seems unlikely that F could move liability to G, as an independent contractor, under s.2(4)(b). Tiling floors is
not complex technical work as in Haseldine v Daw but more akin to checking a doorstep had been cleaned in Woodward v
Mayor of Hastings. Certainly, F should have seen that there was no adequate barrier to protect their visitors from dangers
due to the state of the floor.

It seems that W slips on the wet floor before entering the storage area and so his action would be solely against F.
His success would turn on whether the water had been there for some time, like the yogurt in Ward v Tesco Stores, or, only
briefly, as in Tedstone v Bourne Leisure and whether F had a reasonable system in place to deal with spillages. As a visitor,
W would be able to claim for his personal injuries and property damage (s.1(3)(b)).

Although an occupier may limit liability by notice under OLA 1957, the north door notices could not exclude C’s
and W’s personal injuries. UCTA s.2(1) invalidates any notice on business premises purporting to exclude liability for
personal injury or death. Additionally, W entered by the south door and there were no notices there.

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 The facts are vague on the cause of B’s damage and so one can only speculate as to the appropriate action. If the
trolley was faulty, an action in negligence against the manufacturer, if the fault was due to poor maintenance, then against
F. But perhaps A poorly controlled the trolley, failed to properly secure B, pushed it recklessly when rushing to get to C or
even hit the wet tiling. C and W are advised that they are likely to be successful in claiming against F under the OLA 1957.
C should also include G in her 1957 claim, in the alternative, she should claim against both F and G under the 1984 Act.

[1031 words]

2018 (A) Q7:

Chowan decided to build an extension to her house. She contracted with Premier Construction Ltd (PCL) to carry
out the building work. Before the foundations for the building could be laid, a deep trench excavation was required
which needed inspection and approval by the Council. At the start of the excavation work PCL erected scaffolding
and placed a notice at the entrance to Chowan’s house saying: ‘Danger – No admission to unauthorised persons’.
Consider the principal issues of law which will arise under the Occupiers’ Liability Acts of 1957 and 1984 if the
injured parties attempt to recover the losses arising from the following incidents:
(a) Jin, the two-year-old son of Chowan, was discovered lying badly injured in the excavated trench.
(b) Nadeem, a taxi driver, ignored the sign at the entrance to Chowan’s house and entered the driveway to turn his
car around. A piece of scaffolding fell onto his taxi, smashing the windscreen.
(c) Fred, an inspector from the Council, arrived to inspect the trench excavation. Fred had smoked cannabis (an
unlawful substance) on his way to Chowan’s house, and even though the trench supports had not yet been fully set
up, Fred climbed into the trench to measure its depth. He suffered a broken arm when the trench collapsed.
The paramedics arrived and administered emergency first aid before moving Fred to the ambulance to take him to
hospital. The paramedics forgot to warn Fred not to try to stand up as the medicine he had been given was likely to
cause drowsiness. Fred was carrying a large quantity of cannabis in his pocket and he was afraid that this might be
discovered. When a paramedic’s attention was focused on packing up the first aid equipment, Fred attempted to
climb out of the ambulance to dispose of the cannabis. Fred used the rear door of the ambulance which had a very
high step down to the ground and he fell and suffered a broken hip.

Answer guide:

• The question relates to the law on occupier’s liability – injuries in the different scenarios were caused by the
dangerous state of premises – relevant provisions of OLA 1957 & OLA 1984 apply
• For liability to arise it must be determined that injuries have been caused by “the state of premises, anything done
or omitted to be done on them: S1(1) OLA 1957, 1984
• It must also be determined that the place of injury amounts to a premise: S1(3)(a) OLA 1957: any fixed or movable
structure
• Claims will be brought against those who are occupiers – those who have sufficient degree of control and
occupation: S1(2) OLA 1957, 1984, Wheat v Lacon, AMF International v Magnet Bowling, Ferguson v Welsh
– independent contractors may be occupiers if they have sufficient control over the particular part of premises
• It must also be determined whether claimants are lawful or unlawful visitors: S1(2) OLA 1957 – those who have
invitation, permission or licence, as well as those who have implied permission (Lowery v Walker). H/ver a
person’s licence/permission to enter may be limited/restricted in space, but the occupier must give sufficient
notice: Anderson v Coutts, Gould v McAuliffe. S2(6) OLA 1957 – those entering under law are visitors, S5(1)
OLA 1957 – those entering under contract are also lawful visitors. All others will be considered non-visitors

a) Jin v PCL & C

• J’s injury – the result of falling in the trench – injury is due to the state of premises: S1(1)
• C would be the main occupier as she owns the premise – h/ver there could be shared occupation (dual occupation)
– PCL may also be an occupier here, greater control over the place where the trench was: S1(2), Wheat, Ferguson
• J would be a lawful visitor – is Chowan’s son, lives in the same house, would be authorized to enter: S1(2) – as
such will claim under OLA 1957
• S2(1): common duty of care owed to J – no attempt to exclude duty

20
 • S2(2): the standard of care is reasonableness – C and/or PCL may be expected to take reasonable care to ensure
that it is safe for J to enter the house
• S2(3)(a) – to determine the degree of care required, the occupier must be prepared for children to be less careful
than adults – greater care is needed for children: Moloney v Lambeth, Jolley v Sutton LBC. All the more, OTF, J
is only two years old. C as an occupier and J’s mother at the same time, would argue that it was PCL that had
greater control and had the responsibility of taking greater care for the safety of her son. H/ver PCL would argue
that C as the mother, had the parental responsibility of ensuring J’s safety: Phipps v Rochester, Simkiss v Rhonda
BC – on the facts it is unclear how J ended up in the trench, and where C was at the time of J’s fall. The court is
likely to find that PCL is not liable on the basis of parental responsibility
• S2(4)(a) – PCL will also argue that warning was given – danger is apparent – trench is obvious – scaffolding
erected, Darby. Warning likely to be sufficient, unless it is argued that the trench was not covered – if somehow
it was not obvious, then warning may not be sufficient: English Heritage v Taylor (2016)
• If PCL is not held responsible because of parental responsibility argued above, and liability falls back on C, then
to avoid liability, C would raise S2(4)(b) – work of independent contractor, reasonable to entrust, C took steps to
ensure that IC (PCL) was competent, and that work was done properly – these may be satisfied – the work was
too technical in nature, C cannot be expected to check, or second guess and may trust PCL: Ferguson, Haseldine.
However, it is also matters, whether PCL were insured – as long as C checked, she has discharged her duty and
may not be liable: Gwilliam, Naylor. An occupier may be liable for failing to ensure that the IC was competent
and insured: Bottomley v Todmorden CC (in this case, the occupier was liable only under common law negligence
for the careless activity of its IC – injury not caused by state of premises but IC’s activity on premise). C
• There is a conflict here: with PCL blaming C under parental responsibility, and C trying to shift the blame away,
by arguing that work has been entrusted to PCL.
• In Bourne Leisure v Marsden: “It was absurd and offensive to suggest that the parents were in some way at fault.
A child could be gone in an instant. It did not follow however… that the Defendant was in breach of its duty. The
danger of the lake to a small child, should that child stray, was obvious… Mr and Mrs Marsden knew, as any
conscientious parent would have known, that the site as a whole was dangerous to small, unaccompanied children
for many reasons… In respect of the parents, the phrase “focusing their supervision” had been used in argument.
It had never become clear what that meant. Short of keeping hold of the two children at all times, there was nothing
more the parents could do. Further warnings as to obvious sources of danger would not have made any
difference.” In Bourne Leisure, it was found that no amount of parental responsibility could be used here to find
the parents at fault. But this did not mean that the occupier was liable either.
• C’s position can be distinguished because J’s fall happened outside C’s own house (in Bourne Leisure it happened
at a caravan site) so parental responsibility could apply here. Applying parental responsibility here, it is likely that
this argument will prevail over the S2(4)(b) argument and that despite S2(4)(b), C could still be liable. Arguable
that even if the work done by PCL was beyond C’s ability to check, she could have ensured that her son was kept
away from the trench – could have taken some steps to prevent/minimize risk of harm to J (Woodward v Mayor
of Hastings)
• Conclusion: PCL may not be liable, C may be liable

b) Nadeem v PCL & C:

• N’s car windscreen damaged when he turned into the driveway and piece of scaffolding fell on his car
• PCL and C may argue that damage to car was not due to state of premise but due to N’s act – Tomlinson,
Keown – found that injure and danger arose from claimant trespasser’s act – drawing analogy, it may be found
that N is responsible for his own injury – claim may not be supported by S1(1) OLA 1984, in any event if court
finds otherwise, discuss duty
• N is clearly an unlawful visitor – ignored sign – no permission: OLA 1984
• Whether duty is owed: S1(3)(a), (b) and (c) OLA 1984 – argued that there is knowledge of danger on both PCL
and C’s part (Tomlinson), however there may not be knowledge of presence of N at the premises at the time –
no reason to think N would be there: Swain v Natui Ram, Rhind v Astbury, Donoghue v Folkestone – in all
these cases, occupiers had no reason to think the trespasser would be in the vicinity – same would apply here.
The risk is also not one that needs further protection by PCL or C – they have already prohibited entry – danger
arose out of N’s own act – thus all three (a), (b) and (c) are not satisfied: Tomlinson – no duty

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 • In any event, PCL/C will not have fallen below reasonable standard – breach may not be established – sufficient
notice given, and N can be taken to have willingly accepted risk: S1(4), S1(5) and S1(6), Westwood v P.O.
• N’s claim will fail – in any event, property damage cannot be recovered by non-visitors: S1(8) OLA 1984

c) Fred v PCL & C

• F suffered a broken arm – climbed into trench to measure depth – trench collapsed – PCL and C would argue
that injury was due to F’s act of climbing it – h/ver may counter argue that his act was not a prohibited act, not a
wrongful act – he was doing his duty, arguably if not for the lack of supports, F would not have fallen – claim
may fall under S1(1) OLA 1957
• PCL/C may argue that F had taken an illegal substance before coming to do his job and had cannabis with him
at the time, thus this would render him a trespasser: Harvey v Plymouth CC – if this accepted, F may be a
trespasser at the time – may fall under OLA 1984. Duty may be owed applying S1(3) OLA 1984, but whether
breach can be established is debatable (S1(4) OLA 1984)
• Alternatively, may argue that even though F had cannabis with him he had legal authority to be on the premise -
lawfully sent by the Council – thus he may be regarded as a lawful visitor – also applying S2(6) – persons
entering under legal right – OLA 1957 will apply
• S2(1), S2(2) duty owed, standard of care - reasonableness
• F should be classified as a skilled visitor - S2(3)(b) OLA 1957 applies, together with Roles v Nathan – the issue
whether this can be said to be a risk of F’s calling, arguably yes. PCL/C may not be liable
• Alternatively, they may also argue that their duty has been discharged: PCL issued warning – will rely on
S2(4)(a) and C engaged PCL as IC – will rely on S2(4)(b), Haseldine v Daw, Ferguson v Welsh
• Further, PCL/C may also argue volenti: S2(5) or contributory negligence: S2(3) – comparable to police man in
Higgs – he did not use any precaution, had a torch light but did not use it – here F should not have entered the
trench when the supports were not properly set up. Taking illegal substance, interfering with ability to carry out
work carefully – may also amount to contributory negligence

d) Fred v Paramedics:
• Liability would fall under general negligence – established duty owed to F (Robinson)
• Duty breached by not cautioning him properly – non-disclosure (Montgomery)
• Factual causation – but for their failure, he may not have stood up (Barnett) – causation satisfied
• Legal causation – may be too remote – cannot foresee that he would want to leave the ambulance to throw the
cannabis away (The Wagon Mound)
• May discuss whether carrying the illegal substance may bar his claim: Delaney – it is unlikely to
• However due to the failure to prove remoteness – paramedics may not be liable

2018 (B) Q8:

Kingfisher Gym (KG) engaged Alpine Builders to renovate its gym. Alpine displayed a large notice outside KG
stating: “Danger take care”. Sam, one of the Alpine electricians, was instructed by his manager to install the gym’s
new running machine. Sam, unfamiliar with installing this type of equipment, suffered a severe electric shock as he
commenced the work. Sam had forgotten to check installation instructions before he started. Nathan, a fitness
instructor at KG, suffered head injuries when an overhead spotlight fell on him from the gym ceiling. The spotlight,
fitted by Alpine, had only two of the four bolts required to secure it in place. Paul, a KG member, was responding
to a work email near the entrance to the children’s’ play area. In an instant, Eli, his four-year-old son disappeared.
Eli had seen a life-size picture of a character from his favourite TV show, ‘The Magic Kingdom’, on a door and
immediately ran towards it. When Eli put his hand on the character the door opened. Thinking it was the entrance
to the magic kingdom, Eli went through the door and fell down a very steep stairwell causing him serious injuries.
A large notice prominently displayed at KG’s reception desk states: “The Use of these Premises are Restricted to
Kingfisher Gym Members Only”. Mia ignored the sign and sneaked into the gym when the receptionist was looking
elsewhere. When Mia began to use the rowing machine the belt suddenly snapped and smashed her expensive watch.
Advise KG as to its liability, if any, under the Occupiers’ Liability Acts of 1957 and 1984 for the above incidents.

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Key issues:

1. Sam v KG
® S1(1) OLA 1957: injury due to state of premises
® S1(2) OLA 1957: KG is an occupier (Wheat), S’s claim against AB would fall under employer’s liability –
liability should be established against AB under employer’s liability, thus no need to discuss AB as an
occupier & S is a lawful visitor – permission, and S5(1) – contractual visitor
® S1(3)(a) OLA 1957: the place is a premise
® S2(1) OLA 1957: common duty, not excluded
® S2(2) OLA 1957: reasonable standard of care
® S2(3)(b) OLA 1957: S is a skilled visitor – may be expected to know and guard against risk (Roles), unless
it is an extraordinary risk (Ogwo, Salmon)
® S2(4)(b) OLA 1957: KG engaged IC – as long as it was reasonable to engage IC, KG checked that AB was
competent (Bottomley, Gwilliam) may be sufficient – KG may not be expected to check that work was done
properly – technical in nature (Haseldine, Ferguson) – KG will not be liable
® S2(5) OLA 1957: unlikely that S willingly accepted risk (White)
® S2(3) OLA 1957: S was contributory negligent – did not check manual
® Ultimately, KG unlikely to be found liable, AB may be liable under employer’s liability instead – if AB was
not insured and KG did not check, then KG may be liable – will fail to rely on S2(4)(b) (Gwilliam, Naylor)

2. Eli v KG
® S1(1) OLA 1957: injury due to state of premises – steep stairwell
® S1(2) OLA 1957: KG is the proper occupier – the door and steep stairwell seem to be part of the original state
of the gym, not part of the renovation – greater control (Wheat). Also, E would be a lawful visitor there – no
restriction – implied permission to be there – children of KG members – children play area meant for children
® S1(3)(a) OLA 1957: the place is a premise
® S2(1) OLA 1957: common duty, not excluded
® S2(2) OLA 1957: reasonable standard of care
® S2(3)(a) OLA 1957: occupier must be more careful where children are present – KG will argue parental
responsibility – may fail on the facts based on Bourne Leisure v Marsden – it was a children’s play area, it
is expected children will wander around – applying Perry v Buthins Holiday – children’s play area, KG must
take more care. Further applying doctrine of allurement – KG in breach (Jolley, Glasgow Corp.)
® S2(4)(a) OLA 1957: no warning whatsoever – KG will be in breach – no precaution taken – danger not
obvious: English Heritage v Taylor (2016)
® S2(4)(b) OLA 1957: not applicable here – the stairwell has nothing to do with AB – for this section to apply,
injury must have been caused by IC’s faulty execution of work – doesn’t seem to be the case here
® KG will be liable

3. Mia v KG:
® S1(1): M’s injury is due to the state of premises – belt snapped
® S1(2): M is a trespasser – no permission – sign was clear (Anderson v Coutts)
® S1(3)(a), (b) & (c): duty will not be owed – not clear whether the danger or the belt snapping was known (a)
not satisfied, and (c) not satisfied. H/ver (b) may be satisfied – KG may expect that someone, even a KG
member may be in the vicinity using the equipment. Still, duty will not be owed: Tomlinson, Rhind, Keown
® S1(4): unclear if KG knew about the defect – whether steps taken
® S1(5): no notices placed regarding problem with rowing machine
® S1(6): unlikely that M willingly accepted risks – not known
® S1(8): in any event, claims may not be made for property damage
® M is likely to fail

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2018 (O) Q6:
Farbod converted his 500-year-old stately home into a luxury hotel. The hotel is situated in large grounds which
contain a lake crossed in the centre with an ornamental bridge. Advise Farbod of his liability, if any, under the
Occupiers’ Liability Acts of 1957 and 1984 in respect of the following incidents:
a) Seeham came to the hotel to recuperate following a recent hip operation. Although she was unsteady on her
feet and had to use crutches to get around, Seeham wished to take advantage of the hotel’s garden. She was
injured when she tripped on some uneven paving on the path leading to the garden. A prominent notice at
the start of the path stated ‘Caution: uneven paving’.
b) Akram, another guest in the hotel, went cycling around the hotel grounds. On his return to the hotel, he cycled
over the ancient ornamental bridge (which is very narrow and has very low sides). Akram knocked into the
side of the bridge and broke his leg when he went over the bridge into the lake.
c) The hotel has a strict ‘no smoking policy’ which applies in the hotel and the surrounding gardens. Tony, a
member of the hotel’s staff, desperately wanted to smoke a cigarette so he went into an empty summerhouse
in the garden. He ignored a notice stating: ‘Restricted Area’. As Tony was enjoying his cigarette, a loose
wooden beam fell from the roof, hitting him on his head and breaking his expensive designer glasses.
Tony realised that he should seek medical attention for the injury to his head but he did not want his employer to
know that he had been in the summerhouse. Some hours later, Tony suffered a catastrophic brain trauma as a result
of the accident. The brain trauma could have been avoided or less severe if Tony had received prompt medical
treatment.

Answer Guide:

Introduction:
w Claims will be brought against F for injuries occurring on the premise
w Relevant area of tort: occupiers’ liability
w Governing statutes: (i) OLA 1957 for lawful visitors & (ii) OLA 1984 for trespassers

Initial legal issues:

i) Do all 3 claims fall within scope of Acts? 1957 & 1984 Acts only allow claims for injuries caused by ‘state of
premises, things done or not done on them’: S1(1). Injuries caused by careless acts fall outside scope of Acts – CL.
neg. applies instead: Ogwo v Taylor (1987); Tomlinson v Congleton BC (2003)
® All 3 scenarios involve injuries caused by condition of premises – thus fall within ambit of Acts
ii) Is F the “occupier” who may be sued? S1(2) OLA 1957/1984: occupier = those who are in occupation or have
control. Wheat v Lacon (1966): ‘sufficient degree of control’ – owners are usually occupiers too.
® OTF, F owns the property, therefore F = occupier
iii) Does the place of injury fall within statutory term “premise” – S1(3) OLA 1957 & S1(2) OLA 1984: “any fixed or
movable structure”.
® OTF, in all 3 scenarios, the place of injury would amount to “premise” (path to garden in (a), bridge in (b) &
summerhouse in (c))
iv) Status of Cls. at the point of injury has to be determined – whether “lawful visitor” (V) or “trespasser” (T). S1(2)
OLA 1957: V = anyone who has invitation, permission or would be considered a visitor by virtue of common law.
Under CL, anyone who has an implied licence may qualify as a lawful visitor: Lowery v Walker (1911). Persons
entering through the exercise of a right conferred by law (legal right) would also be treated as a V: S2(6) OLA 1957.
Those entering pursuant to a contract are also treated as Vs: S5(1) OLA 1957. Those who have
invitation/permission/licence to enter may be prevented from entering restricted parts of the premise by giving
sufficient notice. An entrant who ignores the restriction notice would be deemed a trespasser: Anderson v Coutts
(1894). H/ver if notice is not given clearly, the entrant will remain a lawful visitor – notice has to be clear failing
which it is deemed ineffective: Gould v McAuliffe (1941); Stone v Taffee (1974).
® Seeham (S) in (a) & Akram (A) in (b) would be lawful Vs
® Tony (T) in (c) would be a T – he entered a restricted area – ignored notice (detailed explanation below)
v) Remaining legal issues will be discussed separately for each scenario

S v F:
1. S = lawful V, OLA 1957 applies – physical injuries are claimable under the 1957 Act

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 2. S2(1): the occupier owes the V a common duty of care. This involves the duty to ensure that the premises are safe
(occupancy duty: Dunster v Abbott (1954), Fairchild v GFS (2002))

3. S2(2): std. of care – take reasonable care to ensure that the premises are reasonably safe for the permitted use. Cts.
rarely adopt a high std. as seen in cases such as Darby v National Trust (2001); Sutton v Syston RFC (2011).
® Present facts are comparable to G4S Care & JS v Manley (2016). In G4S the Cl. had just been sent back to his
cell & was recuperating after a hip surgery. He was vulnerable. There was a power failure in the prison & the Cl.
needed to use the toilet in his cell, in the dark. He lost his balance, fell, sustained severe injury. D was found in
breach because they took too long to restore power, knowing the Cl.’s condition. S would argue that she is a
vulnerable V.
® H/ver S’s situation would be distinguished – although she is a vulnerable guest, she had the option of not taking
the paving or seeking special assistance. She chose to explore the garden in her crutches, knowing the paving to
be uneven.
® In Tedstone v Bourne Leisure (2008) where the Cl. was injured in hotel premises when he slipped on a pool of
water. The Ct. held that the occupier did not fall below the std. in S2(2). It was pointed out that certain dangers
on holiday sites are inevitable & the occupier is not judged by a high std. (consider if S1 CA 2006 may be argued)

4. S2(4)(a): warning of danger is necessary & will only be sufficient to absolve the occupier of liability if it would
keep the visitor safe. At times, greater precaution is required such as providing an alternative path (Roles v Nathan
(1963)) or installing barriers (Rae v Mars (1990)), over & above giving warning.
® F would argue that he had warned his guests of the uneven paving – the sign was placed at the start of the path.
Whether this is sufficient to absolve him of liability would depend on whether there is an alternative path. F may
also raise the impracticality of a more suitable means of access – the property is a 500-year old stately home
converted to a hotel – there isn’t much he could do about the uneven flooring.
® It seems on the facts that the problem of the uneven paving may not be so serious that it should be closed off –
if it is usually “traversed without difficulty” (Edwards v Sutton LBC (2016)), then the warning would suffice (F
may have placed the sign just as precaution) – On this basis, F would sufficient discharge his duty.

5. S2(5): defence of volenti non-fit injuria – if V knew the risk & continued to use the premise in its dangerous state,
D X liable. In White v Blackmore (1972), volenti failed even though Cl. was a participant in the jalopy race & saw
notices of warning of danger – X consent to risk of injury.
® F would argue that S was volens – knew that the paving was uneven, she was unsteady on crutches – chose to
use the paving anyway. Arguable that S may satisfy S2(5)

6. S2(3): contributory negligence – Ct. also takes into account the extent of care & lack of care shown by the V – if
accepted, likely that S’s damages may be reduced (circumstances also comparable to McKew v Holland (1969))
® F may also argue that S failed to take care –knowing that she is unsteady & that the paving is uneven she should
have sought assistance

7. It is concluded as a whole, that F is unlikely to be liable to S

A v F:
1. A = lawful visitor, OLA 1957 would apply, physical injury is claimable under the 1957 Act
2. S2(1) & S2(2) as stated above – common duty is owed & std. of care – reasonable care to ensure V is reasonably
safe. Edwards v Sutton LBC (2016) would apply here – similarity in facts
® In A’s situation, Edwards may apply – ancient ornamental bridge – Ct. held in Edward that D did X below std.
of care – ornamental bridge is a feature of the park – no previous accidents – no reason why extra care should
have been taken – the bridge is “usually traversed without difficulty” – not every accident is the fault of the
occupier
3. S2(4)(a) as stated above – A would argue that warning of danger was necessary
® OTF: there is no apparent danger – applying Edwards warning may not be necessary

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 4. S2(3) as stated above – F may argue contributory negligence in any event – reasonable person would see that a
narrow, low bridge would be better crossed on foot than on bicycle
5. It is concluded that F is unlikely to be liable to A

T v F:
1. T would be discussed as a T – he entered a restricted area – ignored signs – OLA 1984 applies
® At first glance, it would seem that T = V – staff member – authorized to enter the summerhouse. H/ver this
argument would fail on the facts – notice prohibiting entry was not limited to unauthorized persons – it looks as
though all are restricted from entering (hotel guests AND staff). Also, since T did X want his e/er to know he
entered the summerhouse – it is clear that he acknowledged the restriction but deliberately ignored it. Thus, a T
® Following Harvey v Plymouth CC (2010) further, one who enters the premise recklessly & irresponsibly, having
committed an unauthorized act would have his status as visitor converted to trespasser. T is aware that smoking
is prohibited throughout the hotel – entered the summerhouse to smoke his cigarette – unauthorized act – renders
him a T

2. T’s brain trauma may be claimed under the 1984 Act but the expensive designer glasses – property damage is X
recoverable under OLA 1984: S1(8)

3. In some cases, such as Tomlinson (2003), Keown (2006) & Siddorn v Patel (2007) liability under 1984 Act did not
arise towards a trespasser because injury was deemed to be caused by the Cl.’s own act & not the state of premises
– falling outside S1(1) OLA 1984
® OTF, h/ver T’s injury was because of the beam collapsing – caused by state of premise & not his act – therefore
the claim can proceed under OLA 1984

4. S1(3)(a), (b) & (c): T must first show that the occupier satisfies all subsections – if yes, a duty would be owed to T:
(i) S1(3)(a): whether occupier knew or had reasonable grounds to believe that danger existed on the premise. In
Tomlinson where steps have been taken to ward off danger, such as putting up signs to prohibit entry or to warn
about danger – occupier entitled to believe that danger does not exist anymore. (ii) S1(3)(b): whether occupier knew
or had reasonable grounds to believe that someone is in the vicinity of danger. In Swain v NR Puri (1995) it was
held that actual knowledge or shut eye knowledge would be sufficient to satisfy the subsection. This will be
determined based on primary facts – if primary facts suggest that the occupier would have known, if he “kept his
eyes open”, ‘knowledge/reasonable grounds to believe that T was in the vicinity of danger’ would be satisfied. In
White v St. Albans CC (1990) it was suggested that having put up notice to exclude entry, the occupier was entitled
to believe that no one would enter the premise. (iii) S1(3)(c): whether the danger in concern requires protection by
the occupier.
® OTF: T will not satisfy the reqs. in all 3 subsections – (i) Having put up notice prohibiting entry there is no reason
to believe that the summerhouse is dangerous to anyone. (ii) There is nothing on the facts to suggest that T’s
presence in the summerhouse would be known (he didn’t want his e/er to know – he knew he shouldn’t have
been there – with the signs & T being staff there is all the more, no reason to think he would be in the vicinity of
danger). (iii) The type of danger in question may need protection but the same has been averted by putting up
the sign prohibiting entry.

5. S1(4): the std. of care applicable to T – reasonable care in the circumstances.

® In the circumstances (T is an e/ee, the notice did restrict entry & T entered to smoke his cigarette – a prohibited
act) – it is argued that F would meet the std. of reasonableness – would not be found in breach

6. S1(5): duty may be discharged by giving adequate warning. Westwood v Post Office (1973): notice prohibiting entry
was deemed to be sufficient warning of danger. In Westwood, the Cl. was also an e/ee – he entered a motor room
ignoring notice prohibiting entry by unauthorized persons – he suffered injury & claimed against e/er occupier – D
X liable – it was obvious to an adult that the sign prohibited entry to ward off danger
® Applying Westwood, the notice “restricted area” would be sufficient warning of danger – clear from the facts
that T is aware that he should not have been in the summerhouse – could also be argued that since he is staff, he
would be in the know – reason why entry was restricted – that there was danger in the summerhouse

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 7. It is concluded that T’s claim would fail. In any event, his failure to inform anyone about his injury – arguably
unreasonable – his conduct would break the causal link between F and T’s brain trauma (if any). F is unlikely to be
liable for T’s brain trauma

2017 (B) Q4:

Soraya’s house includes a very large room that is used as a playroom for her twin daughters (Megan and India), aged
six. As a special birthday treat, Soraya contracted with David to build, in the playroom, a play house large enough to
comfortably accommodate four children. The work was delayed on a number of occasions but David informed Soraya
that the play house was suitable for accommodation on the day of the twins’ birthday party. David also informed Soraya
that some adjustments needed to be made to the floor of the playroom, so as to create some steps up to the play house.
He advised Soraya to warn anyone entering the play house that the ground may be unsafe. In the excitement of the
event, Soraya forgot to either put up a warning notice or advise her guests of the state of the premises and because of
the unsafe ground, Jean, the grandmother of one of the child guests, fell and sustained serious injury to her hip. Worse
was to come when two children (Matthew and Sebastian) were seriously injured when the roof of the play house
collapsed on to them. Matthew was an invited guest but Sebastian had climbed into the playroom, through an open, low
placed, window, attracted by the look of the play house and by the party food that was displayed in the play house.
Devon, another child guest, was taken seriously ill after eating an egg that was infected with the salmonella bacteria.
Advise all parties of their rights and liabilities.

Answer Guide:

1. Jean v Soraya – lawful visitor – not properly warned or informed that she should not enter the playhouse – will claim
under OLA 1957 – S2(1), S2(2), S2(4)(a), S2(4)(b) to be discussed – S may argue S2(5) volenti, or S2(3) contributory
negligence
2. Matthew v Soraya – lawful visitor – will claim under OLA 1957 – S2(1), S2(2), S2(3)(a), S2(4)(a), S2(4)(b) to be
discussed – likely that S will be liable to M
3. Sebastian v Soraya – trespasser – today after OLA 1984 has been passed, there is no need to apply the allurement
doctrine to treat a child trespasser who was allured onto the premise as a lawful visitor – discussion should simply
apply OLA 1984 – under S1(3)(a), (b) and (c) – duty will not be owed on the facts – Soraya has no reasonable grounds
to think that a stranger child will simply climb into her house (Donoghue v Folkestone, Rhind v Astbury, Ratcliffe v
McConnell). If alternatively, court finds that it is reasonable to expect that a child may wander in, S1(4), Soraya may
argue that she cannot be expected to offer greater protection or to inspect every now and then to ensure Sebastian’s
safety: Harris v Perry
4. Devon v Soraya – injury not caused by state of premises – would not fall under anything done or not done on
premise – D must bring an action under common law negligence instead (facts resemble Bhamra v Dubb)

2017 (O) Q3:

Mark owns a small steamboat, known as the ‘Dragon Boat’. The boat is painted to look like a dragon complete with
a dragon head at the front of the boat and steam from the engine escapes from the dragon’s nostrils. The boat is very
popular with tourists who take trips in it along the River Thames to see London landmarks.
Mark seeks your advice in respect of the following incidents on a recent trip:
a) Errol (aged 7), who has evaded his parents, sneaks onto the boat while other passengers are boarding. He
goes below the deck, through an open trap door in the deck floor, to the engine room since he wants to find
the source of the dragon’s steaming nostrils. Errol is badly burned when he touches the exhaust pipes leading
from the engine to the dragon’s nostrils. He is taken to hospital and the boat sets off on its trip.
b) Water enters the boat causing the engines to shut down. Mark calls the emergency rescue service and within
minutes they arrive. Seema, a member of the emergency rescue team, inflates the life raft but is killed when
her foot is caught in a rope attached to the life raft and she is dragged under the water beneath the inflated
life raft. The life raft was obviously faulty because it was wrapped in ropes but Seema could not locate an
alternative.
c) Jane, a passenger on the boat, lost an expensive bracelet when she was forced to swim to safety.

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The ‘Dragon Boat’ recently passed a safety inspection and had some minor repairs. The work was done by Boat
Repairs UK. They failed to notice a structural weakness that caused the boat to start taking on board water.
Advise all parties of their rights and liabilities under the Occupiers' Liability Acts of 1957 and 1984.

Answer Guide:

(a) Errol’s claim:

• It is clear that the requirement of injury caused by state of premise, definition of occupier & premise would easily
be satisfied: S1(1), S1(2) OLA 1957 & 1984, S1(3) OLA 1957
• If E is regarded as a lawful visitor (because the trap door was left open, NOT because of allurement): discuss OLA
1957 – in particular: S2(1), S2(2) & S2(3)(a) & Glasgow Corp. v Taylor, Moloney v Lambeth, Jolley v Sutton,
Phipps v Rochester, Simkiss v RBC, Bourne Leisure v Marsden & Perry v Buthins Holiday
• If E is a trespasser (because he went into a restricted area): discuss OLA 1984 – in particular: S1(3) (a), (b) & (c),
S1(4). Facts are in contrast with Tomlinson, White, Swain – duty may be owed. As to whether duty breached,
discuss Platt v Liverpool CC.

(b) Seema’s claim:

• Death is claimable – S is a lawful visitor & injury was caused by the state of premises – defective life raft – arguable
that it is a premise
• S’s claim would largely be influenced by the considerations in S2(3)(b) – Roles v Nathan, Salmon v Seafarer,
Williams v Dept. of. Environment & Neame v Johnson would be relevant. Argued that M would still be liable
• M will not be able to rely on volenti (S2(5)) or contributory negligence (S2(3))

(c) Jane’s claim:

• M may argue that J’s loss was caused by her own action of swimming & not by the state of premises – M may try
to rely on Tomlinson, Keown & Siddorn to argue that J’s claim cannot fall within either statutes
• H/ver the facts will be distinguished – J was forced to swim because of the problem with the boat – caused by state
of premises.
• J is a lawful V on the facts – passenger on the boat – OLA 1957 would apply
• Property damage may be claimed by a lawful visitor
• She would be owed duty under S2(1) and the std. of care would be as argued above (S2(2))
• H/ver M would argue that he is not in breach – because the incident was caused by faulty execution of work by Boat
Repairs UK – M would want to rely on S2(4)(b) & Haseldine v Daw – it is likely that M would not be liable for J’s
loss. M would want to rely on the same argument and section against S & E as well (provided E is discussed as a
lawful visitor). If S2(4)(b) is applied in M’s favour, he will not be liable to E, S & J.
• Alternatively, they may sue Boat Repairs UK under CL negligence

2016 (A) Q2:

The School of Law at Barksby University College was hosting a moot competition against Sidden Law School. The
competition took place in the Council Chamber. The Council Chamber had recently undergone a thorough
refurbishment by Marksman Designs, a local firm with an established reputation for refurbishments which observe
the original features of listed buildings. The moot was going well when there was a smell of smoke. The smoke came
from a fire in a room just off the main Chamber, the door to this room was marked ‘Private No Entry’. Kendra and
several other members of the Barksby Student Union had concealed themselves in the room because they had planned
to disrupt the moot competition as a protest. The fire was caused by faulty electrical wiring, and was compounded by
the fact that the smoke alarms fitted by Marksman Designs were not properly installed. Worse was to follow in that
the newly replaced fire door was not fitted properly and failed to open when the audience and moot participators
sought to exit. Basil, a security guard employed by Barksby, used a sledge hammer to break the door. Unfortunately,
Basil caused further injury when the heavy door fell onto Neil who was closest to the exit, killing him. Most of the
student union protestors were able to leave unscathed, but Kendra (who suffered from asthma) did not survive. Advise
all parties of their rights and liabilities under the Occupiers’ Liability Acts.

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Answer Guide:

1. Kendra v Barksby UC
• Would be a trespasser – entered room marked ‘no entry’ – intended to disrupt event as protest – no
permission to be in the room & committed illegal act: S1(2) OLA 1957, Anderson v Coutts, Harvey v
Plymouth CC. Discussed under OLA 1984
• Death caused by state of premise – faulty wiring – falls within S1(1)
• Barksby is the proper occupier & the place is a premise: S1(2)
• Duty will not be owed - unlikely to succeed – S1(3)(a), (b) & (c) not satisfied

2. Neil v Barksby UC
• Are N’s injuries caused by the state of premises – appear to be caused by B’s act – if it was an act that
caused injury, claim cannot be brought under occupier’s liability, must be brought under negligence instead
– facts comparable to Naylor v Payling. However, applying Cunningham v Reading FC and Tomlinson
– acts of persons authorised by the occupier on the premise may still fall within “state of premises, anything
done or not done on them” – may claim under OLA 1957, S1(1)
• Barksby is the proper occupier – degree of control: S1(2), Wheat
• N is a lawful visitor – member of the audience – permission satisfied: S1(2)
• Place amounts to premise: S1(3)(a)
• N is owed a duty of care: S2(1), the standard of care is that of reasonableness: S2(2)
• N is not a child or skilled visitor, so S2(3)(a) & (b) will not apply
• Warning is not applicable here – door fell on N through B’s act
• Barksby may argue that the fault was due to poor execution of work by MD – independent contractor and
therefore that Barksby has discharged its duty and should not be liable – discuss S2(4)(b), Ferguson v
Welsh, Haseldine v Daw – also discuss whether they were insured: Gwilliam, Naylor
• If arguments upheld in Barksby’s favour, they may not be liable
• Alternatively, N may sue B under negligence – briefly discuss

2016 (B) Q2:

Farley is an experienced burglar. He decided to see what valuable goods he could acquire from a house that was in
the process of being renovated because it would allow easy access. The side entrance to the house was fenced off with
a ‘DO NOT ENTER – WET PAINT’ sign. Farley ignored the sign, climbed over the fence and immediately fell down
a steep hole which was later found to be in preparation for a 15 foot (5 metre) deep swimming pool. Farley suffered a
broken arm and his expensive mobile phone was entirely destroyed. He managed to struggle to a nearby house and
knocked on the door for help. The owners of the property, Matthew and Jane, were holding a party but called an
ambulance and allowed Farley to rest in an upstairs bedroom while the ambulance arrived. Farley needed to go to the
lavatory and so went to the adjoining bathroom. The owners had failed to tell Farley that the bathroom was being
modernised. He tripped on an uneven floor, hit his head on the side of the marble bath, and died. Smith Builders,
independent contractors, was in charge of the bathroom renovations. Advise all parties on their rights and liabilities
under the Occupiers’ Liability Acts of 1957 & 1984.

Answer Guide:

1. Farley v Occupier of house burgled

® F is a trespasser – discussed under OLA 1984
® Injury was due to the state of premises: S1(1) – steep hole
® Whoever had control of the house, presumably the owner would be the occupier: S1(2)
® Place amounts to premise: S1(2)
® F must show that the occupier knew of the danger (satisfied), knew of F’s presence (not satisfied) and that
the risk is one that needed protection (arguably satisfied). H/ver as a whole, duty will not be established:
S1(3)(a), (b) & (c), Donoghue v Folkestone, Ratcliff v McConnell, Swain v Natui Ram, Tomlinson
® The occupier had put up signs – therefore he would meet the reasonable standard of care in any event:
S1(4), S1(5): Westwood, Platt

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 ® The occupier will argue that risks were willingly accepted – F was an experienced burglar and the premise
had signs of caution: S1(6), Westwood v Post Office
® F’s claim will fail, in any event property damage not recoverable: S1(8)

2. Farley v Matthew & Jane

® Since F was allowed into the house he would be a lawful visitor (S1(2))– discussed under OLA 1957
® Injury is caused by the state of premises – uneven floor: S1(1)
® M & J are occupiers – owners – sufficient control: S1(2), Wheat v Lacon
® Place amounts to premise: S1(3)(a)
® F would be owed a duty: S2(1), the standard of care is reasonableness: S2(2) – uneven flooring – dangerous,
M & J should have taken precaution – arguably by cautioning him – failed to
® F would argue that warning was not given: S2(4)(a) – danger is not obvious and quite serious, unacceptable
that no warning at all was given to him: English Heritage v Taylor, contrast with Darby. Discuss also:
Roles v Nathan – Lord Denning’s speech about the bridge analogy
® M & J would argue that the faulty work was because of Smith Builders (independent contractor): S2(4)(b)
– discuss Ferguson v Welsh, Haseldine v Daw, Woodward v Mayor of Hastings
® M & J may not be liable – may successfully argue that duty discharged – counter arguments – could have
averted danger to F by warning him – if this is accepted, they may not be liable

2016 (O) Q9:

Manjit and Joan, both gas inspectors, visited ‘Plastiktoyz’, a factory which manufactured plastic toy products, to
inspect their gas supply and appliances. The factory was undergoing quite extensive renovation and an area had been
cordoned off but there was no sign prohibiting entry to the area. Manjit asked one of the managers where to go to
inspect the gas appliances and was wrongly pointed toward the cordoned off area. Manjit entered the area and was
struck by a crane that was owned and operated by an independent building contractor – Cameron builders. Manjit
was severely injured. Joan was injured in a mild explosion after she touched a faulty valve on a broken gas supply
pipe – the very pipe she was called in to inspect. On hearing the explosion, a passer-by, Ken, jumped over the factory
fence in an effort to rescue Joan and landed on a pile of discarded concrete and waste from the reconstructed building.
Ken suffered a broken leg. Advise all parties of their rights and liabilities under the Occupiers’ Liability Acts of 1957
& 1984.

Answer Guide:

1. Manjit’s claim:
• M would claim for severe physical injury – struck by crane
• To claim under OLA 1957/ 1984 it has to be shown that injury was caused by the state of premises, anything
done or not done (S1(1)). If injury was caused by some careless act of another (such as an IC on the
premise), then the claim should be brought under CL negligence instead: Naylor v Payling, Bottomley v
Todmorden CC.
• Facts can be argued in 2 ways: (i) presence of crane & ongoing construction made the premise dangerous
as a whole. Thus, injury = caused by state of premises & things done on them – OLA 1957/1984 may apply.
OR (ii) M was injured by the act of operating the crane at the time = negligent act – OLA will not apply –
CL neg. will apply instead
• If M claims under OL - M could sue (i) Plastiktoyz (P) (factory owner & occupier) - will satisfy the
requirement of control under S1(2) & Wheat v Lacon
• The place of injury also clearly amounts to “premise”: S1(3) OLA 1957, S1(2) OLA 1984
• As to whether M is a lawful visitor/ trespasser when he entered the area that was cordoned off – arguable
that he is a lawful visitor – one of the managers pointed him towards the area when he asked – permission:
S1(2) OLA 1957. Also, there isn’t any clear notice prohibiting entry (Gould v McAuliffe). Even though
the area was cordoned off, M may have assumed that he had to enter the area to perform the task he was
called to do – thus assumed that his entry was not prohibited. OLA 1957 would apply.

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• He would be owed the common duty (of occupancy) under S2(1). P would owe this duty also because its
manager pointed M towards the part of the premise that was dangerous (ongoing construction & crane
being operated at the time) – this could fall within ‘occupancy duty’ under S2(1)
• The std. of care: reasonableness – must ensure that the visitor is reasonably safe for the purpose of his
entry: S2(2). The purpose of the entry was to inspect gas supply & appliances – P failed to ensure M’s
safety for this purpose – directed to construction area
• P may argue that he is a skilled visitor injured in the course of performing his task/calling & that they may
expect him to take care for his own safety: S2(3)(b). H/ver the section applies to absolve the occupier only
where the skilled visitor is injured in the exercise of his calling, by a special risk ordinarily incident to his
calling (Roles v Nathan). For example, in Neame v Johnson the risk of falling over objects was considered
a special risk common in a paramedic’s line of work and the occupier wouldn’t be liable if such risk
materialises. H/ver, here being struck by a crane is not a special risk ordinarily incident to the job of a gas
inspector. S2(3)(b) would not apply. P would still be liable: Lord Denning in Roles stated, if the visitor
was injured by a different danger, the occupier will no doubt be liable.
• P is responsible for M’s safety – it is argued that they have failed to discharge their duty to give adequate
warning: S2(4)(a) – warning alone is X sufficient - it has to be good enough to keep the visitor safe in
using the premise. Here no warning signs were placed at all. There was no notice prohibiting entry either.
Although the area was cordoned off, M could still enter/access it. Where the gravity of danger is great,
greater caution is necessary: English Heritage v Taylor & Roles. P would be in breach of duty to M.
• At this point, P would want to absolve themselves of liability by relying on S2(4)(b) – P would argue that
the injury was caused by faulty execution of work by IC (CB) & that it was reasonable for P to entrust work
to CB, that they satisfied themselves that CB is competent & that the work was done properly. CB has
failed to adopt safe practices on site as in Ferguson v Welsh. In Ferguson, the occupier was not liable
where work was entrusted to the main builder, and the occupier had no knowledge that the builder had
(without authority), engaged a subcontractor who adopted unsafe system of work on the premise, resulting
in injury to the Cl. Where it is not possible for the occupier to know that the work was carried out
dangerously by the IC the occupier may not be liable: Ferguson, Fairchild v GFS. It is argued similarly
that P may not be liable – there was no way that P could have known whether work was carried out safely
– no expertise in construction – not expected to second guess the IC: Haseldine v Daw. It is concluded that
P will not be liable in relation to the dangerous state of the premise & M may want to sue CB instead. The
question of whether CB is insured will be relevant. If they are uninsured this would impact M’s prospect
of recovering compensation against them. M may then argue that P had failed to ensure that its contractor
was insured. In Gwilliam, Bottomley & Naylor it was held, where the IC carries out dangerous activity on
the premise, there would be a duty on the occupier to ensure that the IC is insured. Such duty would be
discharged by checking with the IC if they are insured. If P did ensure that CB was insured, P would further
be absolved of liability through S2(4)(b). If not, P may fail to rely on S2(4)(b) – failing to ensure that the
contractor has insured their activity on the premise may be interpreted as a failure to ensure that the IC was
competent
• Alternatively, if M sues CB under OL, CB would qualify as an occupier following AMF International v
Magnet Bowling. There could be dual occupation on the facts, with P being the main occupier – shared
control: Furmedge v Chester Le-Street.
• H/ver CB would argue that M is not their visitor – he was wrongly directed to the construction site – CB
did not authorise his entry. CB would also argue that the area was cordoned off (no invitation or permission:
S1(2) OLA 1957). H/ver since the main occupier (P) through its manager directed M to the area & none of
CB’s staff on site had prevented entry/placed notices of prohibition – M would enter with implied
permission: Lowery
• Sections 2(1), 2(2), 2(3)(b) & 2(4)(a) would be relevant & applicable. H/ver the arguments would favour
M as argued above. CB is likely to be in breach for failing to effectively restrict entry onto the construction
site and for failing to give adequate warning of danger. CB may try to rely on defences such as volenti
(S2(5)) or contributory negligence (S2(3)) (arguments?)
• Alternatively, if the situation is interpreted as injury caused by a negligent act, M may pursue CL negligence
against P for the carelessness actions of its IC such as in Naylor & Bottomley.

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 • In Naylor, the occupier was not found liable – breach X established. H/ver in Bottomley the occupier was
found liable – breach established for failing to ensure that the IC was insured. Facts are silent on the steps
taken by P. There may also be an action under CL negligence for the careless act of the manager. Liability
may be established.

2. Joan’s claim:
• J’s injuries are physical in nature & she is clearly a lawful visitor – her claim is sustainable under OLA
1957
• Her claim would be brought against P – as argued above
• She would be owed the same duty and the same std. of care as discussed above: S2(1) & S2(2)
• H/ver in J’s case, P is likely to successfully rely on S2(3)(b)
• It appears that J was injured when performing her calling, by a special risk ordinarily incident to her work
and she would be expected to guard against it: Roles v Nathan, Williams v Department of Environment –
distinguished on the facts.
• It is concluded that P would not be liable for J’s injury

3. Ken’s claim:
• K has sustained a broken leg – physical injury – recoverable under both Acts
• K would want to sue P and/or CB – as discussed above, both are occupiers: S1(2)
• Injury clearly was caused by the state of premises – discarded concrete & waste: S1(1)
• K would be considered a trespasser – no permission/ invitation: S1(2)
• K would h/ver argue that he is acting as a rescuer – having heard the explosion – a passer-by may have
implied permission to enter the premise and effect rescue
• If this is accepted he would be treated as a lawful V
• If OLA 1957 applies – same sections on general duty & std. of care as discussed above (S2(1) & S2(2))
• It is arguable that S2(3)(b) may apply – when acting as a rescuer, K must be prepared for risks such as
falling – Neame v Johnson may apply by analogy. P and/or CB may not be liable for K’s injury under the
1957 Act
• Alternatively, if K is taken as a trespasser (more likely to be the case here) – OLA 1984 will apply.
• P and/or CB would argue that injury was caused by K’s own act and not by danger on the premises – this
is unlikely to succeed on the facts – contrast with Tomlinson, Ratcliffe, Siddorn.
• P and/CB would argue that no duty is owed. A trespasser would only be owed duty under OLA 1984 if
S1(3)(a), (b) & (c) are satisfied. It is argued that it is unlikely that K would succeed in satisfying (b) – no
knowledge of his presence/ action or reasonable grounds to believe that K would come into the vicinity of
danger – one time incident – explosion – no evidence of previous trespass. The presence of the fence also
suggests there is no reason to expect anyone to be near the pile of concrete & waste. K may not be owed
duty as a trespasser: Tomlinson, Swain, Donoghue v Folkestone (Counter arguments?)
• If it is argued that a duty is owed – discuss S1(4). S1(5) & S1(6) respectively – purpose for trespassing may
be relevant – to effect rescue – could P and/or CB be found in breach – falling below std. of care – leaving
pile of concrete lying around

2015 (A) Q6
Robert and Maria decided to hire a caravan on a holiday for a two- week period, accompanied by their daughter
(Felicity) and son (Jesse). The caravan site (owned and maintained by Holiday Caravans UK Ltd) was advertised as
an ideal location for children. The first three days of the holiday were without incident, but tragedy struck on the
fourth day. Felicity and Jesse went to a more secluded part of the caravan site and climbed over a low fence on which
was placed a notice saying: “Keep out. Danger.” Once on the other side, Jesse saw some berry trees and began to eat
some of the berries. Soon after, Jesse began to feel very unwell and Felicity took him back to the caravan. Robert and
Maria had returned from their lunch and Maria decided to give Jesse a bath and put him to bed to rest and recover
from what she believed was the effects of eating too many berries. Maria knew that the hot taps on the bath were
defective but did not realise how serious the fault was. The hot water spurted out and Maria was badly scalded. Jesse
died during his sleep and it was discovered that the fruit which he consumed was poisonous. Advise all parties as to
their rights and liabilities under the Occupiers’ Liability Acts 1957 and 1984.

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Answer Guide:

Introduction:
The facts invite discussion on the law governing an occupier’s liability towards those injured on his premises, due to the
unsafe condition of his premise. Maria was badly scalded when hot water spurted out of a defective tap and Jesse died
consuming poisonous berries found on the caravan site. In the circumstances, the two are advised to bring action in respect
of the death and injuries against Holiday Caravans UK Ltd. The area of law in question, is largely governed by the
Occupiers Liability Acts 1957 and 1984, which provide for liability towards visitors and trespassers respectively.

Advice:
1. Whether the facts in question fall within the ambit of occupier’s liability:
• S 1(1) OLA 1957 provides that the 1957 Act applies in place of common law rules to regulate the duty
which an occupier of premises owes to his visitors in respect of dangers due to the state of premises,
things done or not done on them.
• S 1(1) OLA 1984 on the other hand stipulates that the 1984 Act deals with the duty of an occupier for
injuries sustained by a non-visitor as a result of dangers due to the state of premises or things done or
omitted to be done on them.
• These provisions suggest that an occupier may only be liable where injuries arise as a result of unsafe
condition of premises (upheld in Ogwo v Taylor (1987); Ferguson v Welsh (1987); Bottomley v
Todmorden CC (2003); and Naylor v Payling (2004))
• On the facts, Jesse died when he consumed poisonous berries from a tree found on the camping site. This
would fall within “dangers due to the state of premise” as it may be argued that tree is part of the premise.
• As for Maria, her injury too was the result of a danger in the state of the premise, namely the faulty tap
that spurted scalding hot water.
• As such it is submitted that both Jesse and Maria’s action would fall within the ambit occupier’s liability.
Had their injuries been caused directly by a negligent act inflicted on them, their claim would better be
pursued under the tort of negligence.

2. Whether the claimants’ injuries may be claimed under the 1957 and 1984 Acts:
• S1 OLA 1957, in particular S1(3)(b), provide for injuries, loss and damage including property damage.
• S1(1)(a) alongside S1(9) OLA 1984 provides for “injury” which includes death, personal injury, disease,
physical or mental impairment
• S1(8) OLA 1984 excludes claims for loss of or damage to property
• On the facts, the claims relate to death and personal injury and as such may be claimed under both the
OLA 1957 and 1984.

3. Whether the place of injury amounts to a “premise” that can be occupied:

• S1(3)(a) OLA 1957 does not provide an express definition for the term “premises” but refers to fixed or
moveable structures
• S1(2) OLA 1984 follows the same definition
• The OLA 1957 and 1984 Acts stipulate that an occupier may be liable where he is in control of a premise
that may be occupied, and such premises include fixed and moveable structures.
• Jesse was on the camping site when he consumed the poisonous berries while Maria was using the tap
in the caravan, which also would fall within the definition of a vehicle, or alternatively a movable
structure.
• It is therefore argued that the place of injury is one that may be occupied and therefore fall within the
ambit of the statute.

4. Whether Holiday Caravans did occupy the premises in question:

• S1(2) OLA 1957 talks about liability arising out of a person’s occupation or control of premises and the
common law definition of an “occupier”

33
 • S1(2) OLA 1984 talks about the liability of a person who would under the OLA 1957, be deemed an
occupier who owes a duty to his visitor.
• In Wheat v Lacon (1966), Lord Denning explained that an occupier is anyone who has sufficient degree
of control over the premises. Factors such as having actual possession and physical control of a premise
would give sufficient degree of control over the premise.
• The provisions in both Acts coupled with the common law definition of an occupier imply that Holiday
Caravans could be found liable for death/injuries occurring on the caravan site because it did occupy the
premises in question and satisfy the legal definition of an “occupier”.

5. Whether Jesse and Maria would claim as lawful visitors or trespassers:

• S1(2) OLA 1957: provides for liability towards those who are invitees, licencees and those who would
under common law be considered lawful visitors on the premises.
• Lowery v Walker (1911) held that one could lawfully enter a premise with the implied permission of the
owner of the premise
• S2(6) OLA 1957 provides for those who enter a premise in the exercise of a legal right, stating that they
would be lawful visitors for the purpose of liability
• S3(1) & S5(1) OLA 1957 appears to suggest that parties entering the premise in pursuance of a contract
would also be owed a duty as a visitor
• S1(1) OLA 1984 states that the 1984 Act deals with liability towards those who are not an occupier’s
visitor, alternatively, those who fall outside the 1957 Act
• Cases such as Anderson v Coutts (1894); Gould v McAuliffe (1941) state that a visitor’s permission or
invitation to lawfully enter premises, may be limited in space and purpose. However, an occupier must
provide sufficient notice to inform the visitor that his permission to be on the premise is limited. Failure
to provide adequate notice, may result in the visitor retaining permission to enter even restricted parts of
the premise. At the same time, where it is obvious that a person is not permitted by the occupier to enter
a certain part of the premise or use it in a particular way, notice would not be required.
• Jesse had wandered off to a secluded part of the caravan site and climbed over a low fence into another
area where he found the poisonous berries. It may be argued that the fence and notice “Keep Out.
Danger”, were sufficient to limit Jesse’s presence to only areas within the fence. In the circumstances,
when he climbed over the fence, he may have exceeded the boundaries of permission and entered into a
restricted area, rendering him a trespasser at the moment of danger. Alternatively, if it can be argued that
the low fence was not enough to keep from entering the poisonous berry tree area, then he may remain a
lawful visitor.
• Maria on the other hand was scalded while using the tap in the hired caravan, which she clearly had the
contractual right and implied permission to use. In the circumstances, she would clearly be a lawful
visitor at the time of injury and may be discussed under the OLA 1957.

6. Jesse:
(i) Discussion under OLA 1984:
• S1(3)(a): did Holiday Caravans know of or have reasonable grounds to believe that there was danger on
the premise (poisonous berries)
• S1(3)(b): did Holiday Caravans know of or have reasonable grounds to believe that Jesses was in the
vicinity of danger or may come into it (likelihood of anyone ignoring the signs and climbing over the
fence)
• S1(3)(c): was the danger on the premise (poisonous berries) one that required protection by the occupier
• Consider: Tomlinson v Congleton BC (2004); White v St. Albans (1990); Donoghue v Folkestone
(2003); Swain v Natui Ram (1995)
• If S1(3)(a), (b) AND (c) are satisfied, whether Holiday Caravans acted reasonably in the way that they
tried to protect against the danger of people consuming poisonous berries while on the caravan site,
whether sufficient warning was given and whether they could rely on the defence of volenti non-fit injuria
(Sections 1(4), 1(5) and 1(6) OLA 1984)

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 (ii) Discussion under OLA 1957:
• Glasgow Corporation v Taylor (1922): doctrine of allurement
• Moloney v Lambeth (1966)
• Jolley v LBC of Sutton (2002): foreseeability and allurement
• Phipps v Rochester Corporation (1955)
• Simkiss v Rhondda BC (1983)
• Bourne Leisure v Marsden (2009)
• S2(3)(a) OLA 1957: the need to be extra careful when children may be present on the premise and taking
into account that they would be less careful compared to adults
• S2(4)(a) OLA 1957: whether sufficient warning was given in respect of the danger of consuming
poisonous berried beyond the fence
• S2(5) OLA 1957: whether the defence of volenti may apply
• S2(3) OLA 1957 whether the defence of contributory negligence may apply

7. Maria:
• S2(1) OLA 1957: Holiday Caravans owe Maria the common duty of care except in so far as the restrict
or exclude such duty. On the facts, there is nothing to show that their duty has been restricted or excluded
by agreement or otherwise.
• S2(2) OLA 1957: the common duty of care is to take reasonable steps to ensure that the visitor remains
reasonably safe while using the premise for its permitted purpose. Here, Maria was turning the tap on to
give her son a bath, which is argued to be permitted use of the premises. The fault in the tap causing it to
spurt scalding hot water, could be argued to of serious danger, and the occupier’s failure to avert such
exceptional danger might seem unreasonable.
• Note: Darby v National Trust (2001); Cole v Davies Gilbert (2007); Sutton v Syston RFC (2011)
• S2(4)(a) OLA 1957: whether Holiday Caravans warned their guests using the taps in the caravans, of
the possibility of it spurting scalding hot water. Whether such warning is necessary and if further steps
of precaution may be needed. Discuss also: Rae v Mars (1990); Roles v Nathan (1963)
• S2(5) OLA 1957: whether it may be argued that Maria knew the tap was faulty, and as such ought to
have known that it might have caused harm, but proceeded to turn it on anyway (the defence of volenti)
• S2(3) OLA 1957: whether Maria had failed to take care for her own safety (contributory negligence)

2015 (B) Q6:

The Layton School of Performing Arts is preparing for its annual musical. The grand finale consists of a scene in
which dancers on roller-skates move around a revolving stage. The revolving stage was especially designed and
installed for the occasion of the play by Design All Ltd, an independent contractor with a good reputation. The day of
the dress rehearsal was a disaster. Matt, a 15-year-old boy who was helping with the scene changes, became bored
during one of the play’s longer scenes and went behind the stage into a room, the door of which bore the notice: “Do
Not Enter”, because the floor of the room was rotting. Matt fell through the floor and suffered serious injury. When
the newly erected stage began to revolve, part of the mechanism was faulty and the stage flipped over, trapping one
of the actors (Jack) between the floor and the stage and causing them serious injury. Fearing worse, the audience
members tried to leave the room but were prevented from doing so because of a faulty door. A member of the School’s
maintenance staff (Colin) panicked and was injured during his attempt to open the door. It was found that Colin did
not employ the method to open the door that was expected of an experienced maintenance person. Advise all parties
on their rights and obligations under the Occupiers’ Liability Acts 1957 and 1984.

Suggested answer (1203 words):

Matt suffered serious injury after falling through a rotting floor; Jack and the other actors sustained serious injuries
when the revolving stage flipped over due to faulty mechanisms; and Colin injured himself when attempting to open a faulty
door in The Layton School of Performing Arts. All three are advised to sue the School under the Occupier's Liability Acts
1957 and 1984. It is pertinent to ask whether injuries have indeed been caused by the "state of premises, anything done or
omitted to be done on them": S1(1) OLA 1957 & 1984. Here, the rotting floor, revolving stage and faulty door all constitute
"dangers due to the state of premise".

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 Since all claims relate to personal injuries it is submitted that the death and physical injuries in question may be
claimed under both OLA 1957 and 1984. The Layton School is the proper defendant here as it is the occupier in question:
S1(2) OLA 1957 & 1984, Wheat v Lacon. S1 (2) OLA 1957 provides that visitors include those who are invitees, licensees
and those who would under common law, be considered lawful visitors on the premises. Those with implied permission will
also be visitors (Lowery v Walker), but those who exceed the limits of permission properly communicated, will be counted
as unlawful visitors, who fall under OLA 1984: Anderson v Coutts, Gould v McAuliffe. Here, the door and the "Do Not
Enter" notice were sufficient in limiting Matt's permission to enter the backstage room. Matt is an unlawful visitor. On the
other hand, Jack and the other injured persons were dancers for the School's annual musical and were therefore invited to use
the stage for performance; they are lawful visitors. As for Colin, since he was the School's maintenance staff, he clearly had
the contractual right and an implied license to use any of its facilities including the door in question, and will be considered
under OLA 1957.

Matt

S1(3)(a), (b) and (c) OLA 1984 provide that an occupier will only owe a trespasser a duty of care provided there is
knowledge or reasonable grounds to be aware of danger on the premise and the trespasser’s presence therein, and the risk of
danger has to be one requiring protection. No duty arises where danger has been averted, or the risk arises from the trespasser’s
own conduct: Tomlinson, Ratcliffe and Keown. No duty will arise if the trespasser’s presence at the time is unknown or
beyond reasonable belief: Swain, Donoghue v Folkestone. Here, the School would be right to think that upon stating "No
entry" on the door, sufficient steps have been taken to avert danger and no reasonable person would go through the door. The
space beyond the door is thus no longer a danger, and it would be reasonable for the School to expect that no one would be
in the said vicinity of danger (the place where the rotting floor was). Thus, no duty will be owed to Matt.

Jack and others injured by the stage

The School owes Jack and the actors the common duty of care under the OLA 1957 except insofar as it restricts or
exclude such duty (S2(1) OLA 1957). The 'common duty of care' is to take reasonable steps to ensure that the visitor remains
reasonably safe while using the premise for its permitted purpose (S2(2)). On the facts, the danger to Jack and the others
using the stage, is one that falls within the School’s occupancy duty to prevent: Dunster v Abbott. The question is whether
the duty was discharged. The School will seek to argue that it has discharged its duty by entrusting the work of constructing
the stage to Design All. Relying on S2(4)(b) the Layton School will say that it is not liable for the faulty work of an
independent contractor where (i) it was reasonable to entrust the work to an independent contractor; and (ii) the occupier had
taken reasonable steps to satisfy itself that the contractor was competent and the work was done properly. It was held in
Haseldine v Daw, where the work done is too complex or technical in nature that a non-skilled occupier may not be able to
inspect or evaluate the quality of the work, the occupier will not be expected to make any conclusions as to whether the work
was done properly. His duty would be deemed discharged where he is able to show that he hired a contractor who was
competent enough to carry out the work, to the best of the occupier's. knowledge. The facts suggest that Design All Ltd is an
independent contractor with good reputation. This would also be sufficient to establish that the School did satisfy itself that
Design All Ltd. would be competent enough for the job. Also, it was the mechanism that was faulty, and since the danger
could not be observed from the outside, the School cannot be blamed for not noticing any fault in the mechanism of the stage.
Hence the School may not be liable and the dancers would be advised to pursue an action under common law negligence
against Design All Ltd instead. If such action should prove to be worthless in the event of Design All Ltd. being uninsured,
if it can be shown that the School failed to check for insurance on Design All’s part, then this may invite liability on the
School’s part for failing to ensure competence of contractor: Naylor v Payling, Bottomley v Todmorden CC.

Colin

Since Colin too is a lawful visitor on the premise at the time of injury, it is submitted that the legal duty laid down
in S2(1) and S2(2) OLA 1957 would similarly be owed to Colin. However, the School would argue pursuant to S2(3)(b)
OLA 1957 that Colin is a skilled visitor and as such may be expected to take steps to guard against dangers associated with
his task or calling. S2(3)(b) states that an occupier is entitled to expect that 'a person in the exercise of a calling, will appreciate
and guard against any special risks ordinarily incident to it'. Lord Denning in Roles v Nathan stated that an occupier can
reasonably expect a skilled visitor to understand risks ordinarily associated with his job and is not bound to ensure he comes

36
to no harm. However, where the skilled visitor had already exercised all of the normal skills required to prevent harm, the
occupier may be liable for his damage. Further, where the danger stems from circumstances not associated with the skilled
visitor's calling, the occupier would remain responsibility for the same (Ogwo; Salmon v Seafarers).

On the facts, it is more likely that the School will not be liable for Colin's injuries as he did not exercise the normal
skills expected of an experienced maintenance person when he failed to employ the correct method to open the door. In any
event, the School may argue that Colin was contributory negligent in failing to employ the proper method or to take the
necessary care expected of him (S2(3)). With this it is concluded that the School is unlikely to be liable for Colin’s injury.

In conclusion, it is submitted that the School will not be liable for all injuries in question.

2015 (O) Q6:

Joy River Cruises is a small business owned by Ethel Grandison. Joy River cruises operates two-hour long trips along
the River Thames. Ethel owns only one sailing vessel, which can carry up to 20 passengers. As a result of a recent
collision with another boat, Ethel needed some routine and straightforward maintenance carried out on her boat. She
hired Sailing Right, a local boat builder and repairer, to carry out the works. Unfortunately, the work was carried
out by Tina, a very new and experienced apprentice, who failed to carry out basic testing of the boat before certifying
it ready for the usual river trips. On the occasion in question, Ethel had just admitted the twentieth customer on to
the boat when a couple (Jack and Harriet) with two young twins (Sally and Finn), aged 7, pleaded to come on board,
saying they would be happy to sit on the floor of the boat. After some coaxing Ethel agreed but informed Jack and
Harriet that Joy River Cruises would take no responsibility for any personal injuries, property damage or other loss.
Thirty minutes into the trip, the boat began to sink as a result of Tina’s inadequate repair. Ethel distributed life-
saving equipment but seven of the life jackets were old and failed to inflate properly. James, who was given one of the
faulty life jackets, drowned. Unknown to Ethel, Sally and Finn had evaded their parents 10 minutes into the trip and
had hidden under some heavy canvass piled at the back of the boat. The boat sank before they could be discovered
and Sally and Finn also drowned. Advise all parties as to their rights and liabilities under the Occupiers’ Liability
Acts of 1957 & 1984.

Answer Guide:

Introduction:
• Claims will be brought by (i) the estate of James (J) who drowned & (ii) Jack & Harriet (J&H) for the drowning of
Sally (S) & Finn (F) (parents suing on behalf of deceased children)
• The claims will be discussed under OLA 1957 for visitors and OLA 1984 for trespassers
• The defendant will be Ethel (JRC) – the owner of the boat that sank
• All claims involve death – this is a loss that is claimable under both 1957 & 1984 Acts

Advice - Legal Issues:

1. Whether death by drowning was caused by state of premises, anything done or not done on them: S1(1) OLA 1957
& 1984
• Here, injuries seem be due to the premises (boat), rather than the careless act of the occupier, the claimant or
anyone else authorised by the occupier to be on the premises
• OTF: (a) J’s death can be said to be due to: (i) the boat sinking, which will be considered “due to state of
premises” & (ii) the defective life vest – which can be argued as “things not done on the premise” (b) S & F’s
death would be attributed to the boat sinking, which will be considered “due to state of premises” – detailed
discussion below for both J’s and S & F’s death respectively.
• Both claims may proceed under occupiers’ liability as they do fall within the scope of both Acts.

2. Whether E is an “occupier” – whether she has sufficient degree of control: S1(2) OLA 1957 & 1984, Wheat v
Lacon. She is the owner of the boat – she would qualify as an occupier

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3. Whether the boat is a “premise” – premises include any fixed or movable structure, including vehicles & vessels:
S1(3) OLA 1957, S1(2) OLA 1984, London Graving Dock v Horton (1951) – a ship is considered a “premise”.
OTF: the boat can be considered “premises”

4. Whether the Cls. are lawful visitors or trespassers at the time of injury:
• S1(2) OLA 1957: those who have permission, invitation, licence & those who are visitors through common
law principles
• Lowery v Walker: where a person’s entry is not objected to this may create an implied licence under CL –
rendering the person a lawful visitor
• Harvey v PCC: however, entering and using the premises through either an unlawful or an irresponsible and
reckless act, will change the visitor’s status to “trespasser”
• Stone v Taffee, Anderson v Coutts & Gould v McAuliffe: a visitor who enters a restricted area will be
considered a trespasser – however this will only apply if occupier gave sufficient & clear notice to restrict entry
• J is clearly a lawful visitor – guest/paying passenger – he falls under S1(2) OLA 1957
• It is unclear whether the area S & F were hiding in was designated and labelled as a restricted area. Facts do
not mention any notices prohibiting entry into the back of the boat where the canvases were piled. In the absence
of clear notice or restriction S & F would be lawful visitors. The facts also do not indicate that E had objected
to passengers entering the back portion of the boat. However, E may argue that it is obvious that the area where
the canvasses are piled is a restricted area. E may also try to draw analogy to Scrutton J’s words in The
Calgarth: “when you invite someone to use your staircase you don’t invite them to slide down the bannisters
but to use them in the ordinary way”, and argue that when S & F were allowed on the boat with their parents,
it was understood that they were not to wander around but simply to sit in the area designated for passenger.
However, it may be argued that the use of a boat by a passenger is not comparable to the use of staircase in
general. There is a clear way to use the staircase, but it is less clear on boat, what is and is not permitted. Thus,
it may not be as clear that the area where the canvasses are kept, should not be accessed – much less to children.
Applying Gould where it was stated that clear notices are necessary, here, the lack of notices may mean that S
& F = lawful visitors. In the event that it can be shown that there were trespassing at the time, their claim under
OLA 1984 will also be evaluated below.

5. J’s claim for death as lawful visitor:

i) In relation to the boat sinking – dangerous condition of boat falls – as discussed above, J will be able to sue
under OLA 1957 in respect of this.
• J is owed a common duty of care (occupancy duty) (S2(1)) and the std. of care is that of reasonable care to
ensure that the visitor is reasonably safe in using the premise (S2(2)). The question is whether E’s conduct in
ensuring the safety of the boat meets the reasonable standard of care laid down in S2(2).
• Note: S2(3) does not apply as J is neither a child nor skilled visitor
• E would argue that the task of repairing the boat was delegated to Sailing Right and its staff (Tina) was negligent
– resulting in the boat sinking. E would rely on S2(4)(b) – where the danger in the premise is caused by faulty
execution of work or repairs by an IC – E would not be liable provided it was reasonable to entrust work to an
IC, & E took steps to ensure the work was done properly & that the IC was competent. In Haseldine v Daw the
occupier was not liable for the lift malfunction – having delegated maintenance works to the IC – the nature of
the work was too technical – not possible for occupier to check that it was properly done – trusted engineer. In
the same way, E would argue that she could not have known that the boat would sink – trusted Sailing Right.
As such, E may not be liable in relation to the boat sinking.

ii) In relation to the defective life vest it may be treated as part of the premise and will be regarded as falling under
“things not done” (failure to supply life vests in good condition). This may also fall under OLA 1957
• The sections on duty & std. of care stated above would apply. The Act requires the occupier to take steps to
ensure that the premise is safe for its use. It can be argued that using old life vests that don’t inflate properly
would fall below the std. of care – highly dangerous – life vest did not serve its purpose at the material time
and the occupier failed to keep the visitor reasonably safe. E may be found in breach – where the visitor is in
a vulnerable state & danger is grave greater care is necessary: G4S Care & JS v Manley, English Heritage v

38
 Taylor. The question of adequate warning also does not arise here and is irrelevant for discussion because
simply warning passengers that some life vests are old and may not inflate properly would serve no purpose
in terms of keeping them reasonably safe in using the premise. S2(4)(a) will not apply here to assist E as she
did not ensure that the life vests were safe for use.

iii) As a whole, it is concluded that E would be liable to J’s estate – even though liability for the boat sinking will
be negated by the application of S2(4)(b), E would be liable for supplying defective life vests. But for the defect
in the life vest, J would not have drowned. This outcome is also not too remote. E may not raise any defences
against J or exclude liability for death (UCTA 1977, S2)

iv) Alternatively, J’s estate could institute a claim against Sailing Right (SR) under CL negligence, for the
negligence of Tina. Upon establishing common law negligence against Tina, J’s estate should be able to
successfully establish vicarious liability on Sailing Right’s part. A duty is clearly owed between
repairer/manufacturers and the immediate consumer/user (Donoghue v Stevenson). In failing to properly repair
and test the boat, Tina has clearly fallen below the reasonable standard of care and her inexperience is irrelevant
(Nettleship v Weston). However, the chain of causation may be broken between Tina’s negligence and J’s
death, by E’s unreasonable failure to ensure the good working condition of life vests. Thus, as a whole, only E
will be liable to compensate for J’s death, and not SR.

6. J & H’s claim on behalf of S & F’s drowning:

• The drowning is attributable to the boat sinking, thus, death caused by ‘state of premises’ – the claim will fall
under OLA 1957
• Also, as discussed above, S & F are likely to dealt with as child visitors
• The same sections on duty & std. of care stated above are applicable: S2(1) & S2(2)
• H/ver J & H would additionally argue that greater precaution should be exercised towards child visitors on the
premise – the occupier can expect children to be less careful compared to adults (S2(3)(a)).
• In Moloney v Lambeth where a child fell through a gap in a balustrade the occupier was found liable for failing
to take greater care to ensure that the gap was not big enough for a child to fall through
• J & H may also argue that if there is an allurement on the premise, the occupier should exercise greater caution
to prevent harm to children: Glasgow Corporation v Taylor, Jolley v Sutton LBC – especially where it is
reasonably foreseeable that the child would engage in a dangerous act. H/ver it is important to note that in both
cases, there was an actual source of allurement – berry tree in Taylor and boat in Jolley. Also, in both cases,
the allurement principle did apply, placed greater burden of care on the occupier and found the occupier liable,
where the allurement itself harmed the child (the alluring object itself was dangerous & caused death/injury).
The present facts are probably in contrast & may be distinguished. Firstly, it is doubted that there was any
allurement on the boat or that the children were allured away from their parents by the heavy canvasses.
Secondly, even if the canvasses were the source of allurement, the children’s death was not caused by the same
– had they been discovered earlier, they would not have drowned. The allurement principle may not apply.
• Instead, E would argue that ‘parental responsibility’ would negate liability on her part – J & H ought to have
been more careful & kept proper watch over their children – the children had been away from their parents for
20 minutes – J & H did nothing. Applying Phipps v Rochester & Simkiss v RBC E may not be liable. In both
cases, the Ct. found that the parents were responsible for their child’s safety. J & H may want to argue that
there were not at fault – that children momentarily & inevitably escape their parent’s attention & that greater
care should have been taken by the occupier in a place where children are likely to wander around. H/ver it is
more likely that there was nothing more E could have done. Indeed, on the facts, she did tell J & H that she
was allowing their family on board at their own risk. (Bourne Leisure v Marsden is likely to apply instead of
Perry v Buthins Holiday)
• As argued above, E would also rely on S2(4)(b) to say that liability would be defeated by the fact that repair
works had been entrusted to Sailing Right
• Further, E would also want to disclaim liability relying on S2(1), which allows the occupier to restrict or
exclude liability by agreement or otherwise. An EC may exclude liability if it was clearly communicated: White
v Blackmore and it is clear from the facts that E did do this, and J & H accepted. If this is accepted, the EC is
valid & effective & will exclude E’s liability for S & F’s death.

39
 • Where an EC is present, UCTA 1977 may be relevant. UCTA 1977 may apply to defeat the EC (and the
occupier would remain liable). H/ver the provisions on UCTA 1977 only apply where business liability is
concerned: S1(3) UCTA 1977. S2 OLA 1984 has amended S1(3) UCTA 1977. Originally “business liability”
under S1(3) would apply to premises used for business purposes. Now, an occupier of a premise, who allows
access onto his premise for educational or recreational purpose does not fall within “business liability” (and
UCTA 1977) would not apply to him). However, if the occupier’s business has an educational or recreational
purpose then it could fall within ‘business liability’. It can be argued that although E’s boat provides recreation,
it operates as a business nonetheless. Therefore, hers would fall within ‘business liability’ and UCTA 1977
will apply. J & H would then rely on S2(1) UCTA 1977 that liability cannot be excluded for personal injury.
• E may also raise the volenti defence in S2(5) or the contributory negligence defence S2(3)
• Overall, it is concluded that E would not be liable for S & F’s death because of S2(4)(b)
• Alternatively, J & H may sue Sailing Right as discussed above for J. It is possible that J & H’s carelessness in
failing to take proper care of their twins will have an impact on whether the claim succeeds (either by breaking
the causal link or as contributory negligence)

7. Alternatively, if S & F are regarded as trespassers, the question is whether they will be able to recover compensation
through OLA 1984
• The claim may proceed against E, as well as for the same type of loss (drowning), occasioned by the condition
of the boat. The OLA 1984 is capable of accommodating this claim, in particular where S & F are not regarded
as lawful visitors who fall under OLA 1957.
• The question is whether they are owed a legal duty of care. S1(3) OLA 1984 states that duty is owed where (a)
the occupier knew or had reasonable grounds to believe that there was danger on the premises, (b) the occupier
knew or had reasonable grounds to believe that someone was in the vicinity of danger or may come into it, and
(c) that the risk of danger was one that required protection by the occupier.
• Although E would certainly have been aware of the pile of canvass in the back of the boat, this was not the
direct cause of the twins’ death and thus not the danger concerned for the purposes of duty. They drowned
because the boat sank due to Tina’s fault. This is the danger in the premise that led to the death of the twins,
and it is unlikely that E was aware of the same. Where the occupier is not aware of the danger concerned, no
duty arises: Higgs v Foster. S1(3)(a) will not be satisfied on the facts.
• Further, although E knows that the twins are on the boat, she presumably did not know that the twins were in
greater danger of drowning because they were in the back of the boat instead of with their parents. There is
nothing on the facts to suggest that was actual knowledge of this or ‘shut-eye’ knowledge (Swain v Natui
Ram). Given that E had told S & F’s parents that she was not responsible for their safety, there are no reasonable
grounds for her to think that the twins were in particular danger (Donoghue v Folkestone). S1(3)(b) will not
be satisfied on the facts.
• The risk of danger on the facts, arguable arises from the condition of the boat as a whole – that it was prone to
sinking. This was not known to E. In any event the task of repairing the boat had been entrusted to Sailing
Right. Therefore, the risk concerned is not one for which E can be expected to offer protection. She also cannot
be expected to offer protection in respect of the heavy canvasses since there is no reason to think that the
canvasses would lead to death by drowning. Thus, applying Tomlinson v Congleton, there was no risk on the
facts, for which E should or could have offered protection. S1(3)(c) will not be satisfied on the facts.
• In the circumstances, S1(3) will not be satisfied, and no duty is owed to S & J.
• Even if any such duty is owed, E will most likely be found to have met the reasonable standard of care in S1(4)
because she had entrusted repair works to Sailing Right and could have done thing more to prevent S & F’s
drowning. The issue of warnings does not arise here as E was not aware that the boat was not repaired and
tested properly. S1(5) does not apply here. Although it would not be possible to apply the defence of volenti
against the twins found in S1(6), it is possible that even if a claim succeeds, damages would be reduced on
account of the parent’s fault/ neglect, i.e. contributory negligence on their part.

Conclusion:
• J’s estate will succeed against E in respect of drowning due to the defective life vests, but any claim against Sailing
Right is likely to fail.
• J & H’s action on behalf of S & F is highly likely to fail but they may succeed against Sailing Right.

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2014 (B) Q7
Samantha inherited a large house from her recently deceased grandfather. Although Samantha was aware that the
property was in need of refurbishment, she was so delighted with the gift that she decided to throw a housewarming
party immediately on moving in. She had planned for 30 guests, but so many of her friends and work colleagues had
brought partners that there were at least 50 people present on the day of the party. Samantha had warned all invited
guests not to go into the rooms on the third floor of the house because the floor boards were rotten and the electrical
wiring was unsafe. John who accompanied Daisy (Samantha's best friend) had not been informed of the state of the
third floor and was seriously injured when he fell through a rotting floor of one of the third-floor bathrooms. Attracted
by the music, three teenagers (Martin, Faith and Helen) entered the house by a back door which was partially hanging
from its hinges. They had not been invited to the party and, anxious to avoid discovery, they grabbed a bottle of vodka
from the unattended kitchen quarters and raced up to the third floor. After drinking some of the vodka, Helen went
in search of some food. She found some eggs and, intending to cook an omelette, turned on the gas cooker which
promptly exploded causing Helen severe burns. An ambulance was called to the scene. Frank (a paramedic) entered
the room where Helen was lying and turned on a light switch. The wiring was so badly in need of repair that Frank
was electrocuted to death. Advise John and Helen and Frank's estate of any claims they might have in tort.

Answer Guide:

1. John v Samantha
® John was a lawful visitor when he entered the house but did not know that he was not supposed to go into
the rooms on the third floor, applying Gould v McAuliffe, he would remain a lawful visitor. Evaluating his
claim under OLA 1957, firstly the injury was due to the state of premise (rotting floor boards) – S1(1)
OLA 1957, Dunster v Abbott. Samantha is the proper occupier because he inherited the property (S1(2)
OLA 1957). The place amounts to ‘premises’ as it is a fixed structure (S1(3)(a) OLA 1957), and the type
of injury sustained is recoverable under the act, i.e. personal injury (S1(3)(b) OLA 1957). He is owed the
common duty under S2(1) OLA 1957, and Samantha is required to take reasonable care to ensure her
visitors are reasonably safe (S2(2) OLA 1957). Knowing that the property was not safe yet, and that many
attended with the partners, and these partners may not have been aware of the condition of the third floor,
she does not seem to have done enough to discharge her duty: White Lion Hotel v James. Also, the warning
given is arguably inadequate to keep visitors safe – she could have closed off the entrance to the third-floor
room, since danger would not have been obvious: English Heritage v Taylor, Roles v Nathan, Rae v Mars.
She will be found in breach. She may not rely on any defences against John.

2. Helen v Samantha
® Helen is clearly a trespasser – not invited to the party and sneaked in – does not fall under S1(2) OLA 1957
and does not have implied permission per Lowery v Walker. She will fall under OLA 1984. Samantha is
the proper occupier for her injuries (S1(2) OLA 1984). The injury is recoverable under OLA 1984 – S1(8)
only excludes property damage, and the place amounts to a premise: S1(2) OLA 1984. However, it is
arguable, whether the injury stemmed from her own careless act as in Tomlinson (trying to cook an
omelette) or the state of premises (gas stove that exploded). The facts are distinguishable from Revill n
Newberry and Tomlinson thus the claim may proceed under OLA 1984. It does appear that the injury was
still more to do with the gas stove. The question is whether she will be owed a duty of care under S1(3)(a),
(b) and (c) OLA 1984. Even though the back door was partially hanging from the hinge, this does not
mean that Samantha has reason to believe anyone would stealthily enter and use her kitchen: Swain. She
may know of the danger with the gas stove: Tomlinson and it is a risk that requires protection, but not in
the circumstances, as Helen’s actions were unexpected. Thus, S1(3) will not be satisfied, no duty will be
owed. In any event, Samatha may raise volenti and rely on Keown, but it is unlikely that Helen knew the
risk of an explosion. Instead, applying Revill, the defence of contributory negligence may be established
instead.

3. Frank’s estate v Samantha

® Frank clearly entered as a lawful visitor. His claim may be brought against Samantha as well, death is a
type of loss recoverable under OLA 1957, and it was caused by the state of premises.

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 ® Applying S2(1) and S2(2) he was owed a duty, that reasonable care would be taken to ensure his reasonable
safety. However, Samantha will try to rely on S2(3)(b) that he was a skilled visitor who died due to special
risks ordinarily incident to his calling. However, the facts will be distinguished from Roles v Nathan,
because he would not have known at the time that the wiring was faulty and there was a risk of electrocution.
Indeed, also distinguishing from Naeme v Johnson, this may not ordinarily be a kind of risk encountered
by a paramedic. Applying Ogwo and Salmon instead, Samantha will remain liable. No defences may be
raised here against Frank as well.

2013 (A) Q5:

Algy took his car to the Do-U-Down Garage for its annual service in March 2013. Until September 2012 he had
worked as a sales assistant at the garage but had left when he had a chance to go touring with a rock group. There
is a notice in the reception area reading: ‘Customers must remain in the reception area. Cars will be brought to the
forecourt by one of our mechanics.’ It is possible to access the workshop from a door behind the reception desk. On
that door, there is a sign saying: ‘Garage staff only. No unauthorised admission.’ When Algy returned to collect his
car, he went behind the desk, chatted to Brenda, the receptionist, and went through the door into the workshop. His
car had been raised on a mechanical ramp and a mechanic, Chris, was working on it. Chris called Algy over and
pointed out problems on the underside of the car that would soon need attention. At that point, the ramp collapsed
and both Algy’s legs were severed. Algy’s girlfriend, Delia, was waiting in the reception area. She heard Algy’s
screams and ran into the workshop. She slipped on a patch of oil on the floor and fell, causing herself serious head
injuries. An examination has now shown that a concealed part of the ramp had become corroded. Do-u-Down
Garage had the ramp inspected annually by Goeasy Ltd, who reported no faults when it carried out an examination
in December 2012. Goeasy Ltd is now out of business. Advise Algy and Delia as to any claims against Do-U-Down
Garage.

Key issues/ claims:

1. Algy v Garage
® Injury due to state of premises – ramp collapsed (S1(1) OLA 1957, 1984) – claim falls under occupiers’
liability. The garage is the proper occupier (S1(2) OLA 1957, 1984) – sufficient degree of control and
occupation: Wheat v Lacon. Place amounts to premise (S1(3)(a) OLA 1957, S1(2) OLA 1984) &
Personal injury is recoverable under both Acts

® Technically Algy is a trespasser – not authorised – his claim may be considered under OLA 1984 – OTF,
may not satisfy duty (S1(3)(a), (b) & (c) because even though is presence is known, the danger is not
known and thus, need for protection also cannot be proven: Tomlinson, Rhind, Higgs). Breach may not
be established as the garage did try to keep guests away from unsafe areas with signs posted everywhere
(S1(4), S1(5), Westwood v Post Office). Further, the provision on willing acceptance of risk (volenti)
may defeat the claim if at all it is established. Having worked there, Algy would be aware of the risks
but willingly accepted them by going into the garage ignoring signs: S1(6), Westwood, Keown.

® However, since he is a former staff and was allowed in – Chris called him in to have a closer look at his
car – implied permission (Lowery v Walker), no clear restriction to Algy (Gould v McAuliffe), he would
be a lawful visitor

® Discussed under OLA 1957, duty would be owed (S2(1) – occupancy duty covers ramp) and standard
of care may be breached (S2(2)). Danger of ramp collapsing not obvious – contrast with Darby v
National Trust. However, garage may also argue that accidents like that have never happened – could
not anticipate and prevent: Edwards v Sutton LBC. Garage may argue that since he has worked there,
he is a skilled visitor and can guard against the risk: S2(3)(b), and that the injury was from a special risk
ordinarily faced by mechanics (Roles v Nathan, Neame v Johnson). However, at the time he was not
entering to perform any task or calling as mechanic – S2(3)(b) will not apply. Warning may also be
discussed (S2(4)(a) – no warnings were placed but the garage will argue that the danger is obvious to
Algy since he worked there before: Darby v National Trust will apply; however, the corrosion may not
be obvious. Consider English Heritage v Taylor. Garage will rely on S2(4)(b) to say that inspection of

42
 ramp was carried out by the IC, thus, no breach on their part. Discuss Haseldine v Daw, Ferguson v
Welsh, Naylor v Payling and Gwilliam v Hertfordshire NSHT. Garage will most likely escape liability
because of S2(4)(b) unless it can be shown that they failed to check on the IC’s insurance or competence.
However, since the IC is not insolvent, the claim maybe allowed against the garage, failing which Algy
will be left without any remedy. Volenti defence and contributory negligence may be considered: S2(5),
S2(3), White v Blackmore.

2. Delia v Garage
® In the circumstances, will be considered a lawful visitor – implied permission to rush in when Algy was
injured – discussed under OLA 1957 – same provisions discussed above will apply. The defendant will
also be the garage, the type of injury is recoverable and the place amounts to a premise. OLA 1957
sections will be relevant to determine liability.

® Duty will be owed, injury was due to the state of premises. However, breach may be difficult to establish
since it is common for garage floors to have oil patches (Tedstone v Bourne Leisure may be compared
with here). May be difficult to establish breach. Warning has not been given, to caution of slippery oily
floors – based on this breach may be established. But at the same time such danger can be argued to be
obvious. Delia’s claim may fail.

2013 (B) Q4
Joe and Ken are 14-year-old pupils at Dotheboys Community College. Joe is a clever and adventurous child. Ken
has learning difficulties: he admires Joe and follows his lead. Joe discovered that one of the railings surrounding
the school grounds had become slightly loose and so he suggested to Ken that they would be able to squeeze through
and get into the school grounds after the school had closed for the day and the buildings were locked. They did so.
There was no other access to the school grounds. Joe then noticed that one of the windows was very slightly open.
The boys managed to climb in and found themselves in a chemistry lab. Ken saw some test tubes and poured water
into one of them. The test tubes had been left ready for an experiment the following morning. There was a big
explosion and Joe and Ken were hurt. Laura, a paramedic, was one of the ambulance crew sent to the scene. Her
ambulance was not equipped with the special clothing that should be worn if there was a danger of a chemical leak.
However, she decided that the situation was so serious that she should try to help the boys at once rather than wait
for the special clothing to arrive. She managed to treat the boys but was herself badly burned as a result of contact
with the chemical. Advise Joe, Ken and Laura.

Suggested Answer:

The relevant area of law in question is that of occupiers’ liability as injuries have occurred on the premises of the
Dotheboys Community College (‘DCC’). The answer will evaluate whether claims can be brought under the Occupiers
Liability Acts 1957 (OLA 1957) (for lawful visitors) and Occupiers Liability Act 1984 (OLA 1984) (for trespassers).
Those injured on premises are Joe, Ken and Laura. The potential defendant is the DCC as it is their premise.

It must first be determined whether the claims fall within the ambit of the OLAs. S1(1) of both Acts provide that
the Acts replace common law rules on liability for injuries due to the state of premises, anything done or not done on them.
Here, Ken poured water into test tubes resulting in an explosion responsible for Ken, Joe and Laura’s injuries. Firstly, in
decisions such as Ogwo v Taylor, Revill v Newberry, Naylor v Payling, Bottomley v TCC: it has been made clear that if
injury was caused by the careless act of either the occupier, or another visitor on the premise or any other person on the
premise, it is not caused by the state of premises, and does not fall within “things done or not done on the premise.” Liability
for wrongful acts should fall under common law negligence instead. However, in Tomlinson v Congleton BC the HOL
took the opposite view that “things done or not done” can include the occupier’s actions and actions of anyone authorised
by the occupier to be on premise. Further, in Cunningham v Reading FC it was held that if the state of premises made it
possible for some other dangerous activity to take place causing injury, then this would fall within the scope of S1(1).

Applying these to the facts here, firstly, in relation to Ken, it was his own act that caused his injury, i.e. pouring
water into the test tubes directly causing the explosion. For Ken’s injuries, it is submitted that like the claimants in cases
like Tomlinson, Keown v Coventry NHST and Kolasa v Ealing Hospital NHST where they knowingly endangered

43
themselves on the premises, liability will not fall under the scope of the Acts and the occupier is not responsible. However,
Ken was led into the premise by Joe, and has learning disabilities, and would argue that his position should be distinguished
from that of claimants in Kolasa, Keown and Tomlinson. But it is argued that, even though he has learning disabilities, he
was probably not completely incognizant of his actions. Ken will be responsible for his own actions. His claim will not fall
under occupiers’ liability. It is submitted that he will not be able to bring a claim under common law negligence against
DCC either because it was his own actions rather than their negligence that caused his injury. This is in contrast with cases
like Revill and Ogwo wherein it was held that a claim could be made under common law negligence against the occupier
because it was the occupier’s careless act that directly injured the claimant.

As for Joe, his injuries resulted from the wrongful action of another on the premise (Ken) and as such the decisions
in Naylor, Cunningham and Bottomley will be relevant. However, the difficulty is that in those cases the party causing
injury was authorised to be on the premise, whereas on the facts, Ken was trespassing at the time and presumably not
authorised to be in the lab at the time. or to do what he did. DCC will argue that they are not responsible for Ken’s actions.
In Tomlinson, the HOL also stated that it is only the act of the occupier or someone authorised by the occupier, that could
at best, fall under “things done or not done on the premise.” Thus, for Joe, there are two possible arguments. Firstly, Ken
was not authorised to be there at that time and DCC cannot be liable for Ken’s actions. Joe’s claim must be pursued under
common negligence instead per Naylor and Bottomley. Alternatively, it can be argued that Ken is a pupil at DCC and is
generally permitted to be on the premises of DCC even though he did sneak in. The fact that the railing and open window
made it possible for him to enter the lab suggests that his actions are not entirely unexpected. If this is accepted, then Joe’s
injuries are the result of the act of someone “authorised” by the occupier to be on the premise (Ken) and could fall under
S1(1) on the basis of following Tomlinson. At the same time, the presence of danger on the premise enabling Ken’s actions
could also fall within S1(1) on the basis of Cunningham. Joe can claim under occupiers’ liability.

As for Laura, her injuries were clearly caused by the state of premises and fall within the ambit and responsibility
of the occupier, DCC. As such, she will be able to claim under either of the Acts

It is also necessary to show that the place of injury amounts to a premise. S1(3)(a) OLA 1957 provides that a
premise includes any fixed or movable structure and the same is echoed by S1(2) OLA 1984. On the facts, the injuries
happened on a college premise, in the science lab, clearly a fixed structure.

Next, it also has to be shown that the defendant, DCC is an occupier under the Acts, for liability to arise. S1(2)
OLA 1957 and 1984 provide that occupiers are those that have occupation or control of the premises, or those who under
common law would be considered an ‘occupier’. In Wheat v Lacon it was held that anyone who has sufficient degree of
control over the premise, including the right and ability to fix the condition of the premise will be considered an occupier.
DCC own and operate the college and therefore have control over the condition of its premises. As such, DCC will fall
within the definition of occupier and may be sued.

In order to establish liability, it is also necessary to determine the status of the claimants. S1(2) OLA 1957 states
that those who have permission, invitation or licence to enter the premise are regarded as lawful visitors. Further, those
who would be considered “visitors” under common law may also fall within the protection of the 1957 Act. Those who do
not fall within these provisions will be regarded as trespassers and will fall under the OLA 1984 (S1(1) OLA 1984). In
Lowery v Walker it was held that an occupier who does not object to the use of his premise by another would be deemed
to have given the other implied permission or licence to enter or pass through. Under common law, such a person would
be a lawful visitor too. However, where clear notice is given a lawful visitor who exceeds any such restriction will be
deemed a trespasser (Anderson v Coutts). If, however, restriction or prohibition is unclear, then the visitor entering the
premise remains a lawful visitor: Gould v McAuliffe.

Here, Joe discovered that one of the railings surrounding the school grounds had become slightly loose and so he
suggested to Ken that they would be able to squeeze through and get into the school grounds after the school had closed
for the day and the buildings were locked. Joe then noticed that one of the windows was very slightly open and the two,
climbed in. Although there are no signs prohibiting entry at the time, the boys were clearly trespassing like the claimant in
Ratcliffe v McConnell. It also cannot be argued that the slightly loose railing and very slightly opened window encouraged
the trespass. These do not constitute “implied permission” or “invitation” to enter. As 14-year-old pupils, the boys would
well be aware that entry after closing hours is prohibited. Thus, Joe and Ken are highly likely to be considered trespassers

44
and will fall under OLA 1984. The answer will proceed to consider only Joe’s claim under the Act, since as discussed
above, Ken’s claim will not fall under occupier’s liability at all (Tomlinson; Keown).

Considering Joe’s claim under OLA 1984, the issue is whether he is owed a duty of care. S1(3) provides that duty
is owed provided (a) the occupier knew or had reasonable grounds to believe that there was danger on the premise; (b) the
occupier knew or had reasonable grounds to believe that someone was in the vicinity of danger and (c) that the danger was
such that protection is required.

In Tomlinson, it was accepted that the defendant was aware that it was dangerous for the public to swim in or
wade in the lake since there had been accidents involving the use of the lake. In Platt v Liverpool CC, the defendant was
aware of that the dilapidated house was dangerous and could collapse anytime. Even though steps were taken to discourage
anyone from entering the house, knowledge of danger could not be denied. It is argued that DCC is bound to know that the
lab was left in the said manner on the day in question. Having left the apparatus in the lab ready for the experiment the
next day, danger on the premise is definitely known and undeniable. Thus, knowledge of danger on the premise is satisfied
per S1(3)(a) OLA 1984.

As to whether the occupier knew or had reasonable grounds to believe that the trespasser was in the vicinity of
danger or may come into it, in Donoghue v Folkestone, knowledge of the presence of the trespasser in the vicinity was
not satisfied because even though it was known that the defendant’s premise was used as a diving platform during the
summer, it was not known that anyone would dive from the defendant’s premise into dangerous waters in winter, after
midnight. Further, in Swain v Natui Ram it was held that actual knowledge or ‘shut-eye knowledge’ was necessary and it
cannot be said that the occupier ought to have known that the trespasser would enter the premise. Applying Donoghue and
Swain, there was no reason to think that Joe would sneak in or be in the lab after the college had closed for the day. There
is nothing on the facts to point towards actual knowledge of students entering the lab in this manner. Even if there were
previous instances of trespass, this would not give reasonable grounds to expect entry of students in the lab at the time.
Therefore, S1(3)(b) OLA 1984, knowledge of presence of trespasser will not be satisfied.

Lastly, as to whether the danger in question required protection, it is submitted following Tomlinson that it does
not, since DCC had left the test tubes in the said manner at a time when it believed for sure that the test tubes would not
pose danger, since they college had closed for the day and the apparatus would only be used the next day when a teacher
was present to supervise the students. As such, S1(3)(c) OLA 1984 will not be satisfied.

In the circumstances, Joe will fail to satisfy the duty requirement under OLA 1984. In any event, given the nature
of the trespass. i.e. just for the sake of adventure, it is argued that the fact that DCC had locked the building would be
sufficient to meet the standard of care in S1(4). Finally, even if Joe could satisfy duty and breach, his claim is likely to fail
on grounds of volenti non-fit injuria, i.e. where the injury can be said to result from dangerous risks willingly accepted by
the trespasser: S1(6) OLA 1984. Applying Keown here, Joe’s act will similarly be considered willing acceptance of risk
since the dangers of his actions on the day in question would clearly have been obvious to him. He is also described as
clever and adventurous. Even though he may not have known that Ken would have played with the test tubes, the act of
breaking into the science lab in itself is foreseeably dangerous and this would suffice for the volenti defence (Revill v
Newberry). Thus, Joe will fail under OLA 1984. In the unlikely event that Joe is regarded as a lawful visitor, the OLA
1957 may be considered. He would be owed a common duty of care under S2(1) and this would include responsibility for
the actions of Ken as discussed above by applying Tomlinson and Cunningham, i.e. that on these facts, both an occupancy
and activity duty may be owed. As to whether the standard of care S2(2) is met, the fact that Ken is fourteen means he is a
child and the provisions for children apply. In S2(3)(a) OLA 1957 it is stated that occupiers must take more precaution
where child visitors are concerned since children are less careful than adults; all the more in a boys’ college like DCC
where there is a science lab, which arguably serves as an allurement to young, adventurous boys like Joe, DCC could not
afford to be so careless as to not lock all windows. In Jolley v Sutton LBC, the claimant, a 14-year-old tried to fix a rotting
boat when it collapsed on him causing severe injury. The occupier had not taken sufficient steps to avert the danger to
young children, knowing it to be easily accessible, left exposed in an open public access area and close to where children
played. The court applied the allurement doctrine and held that care on the occupier’s part was insufficient because danger
was foreseeable and easily reached by youngsters. Indeed, “it has been repeatedly said in cases about children that their
ingenuity in finding unexpected ways of doing mischief to themselves and others should never be underestimated.” (Lord
Hoffman). On that basis, the occupier in Jolley was found in breach; but the present facts may be distinguished since Joe

45
had entered the lab at an unexpected time. Nonetheless, as a whole, by leaving the lab apparatus in the said manner and
failing to close the window, DCC would fall below the standard of care.

The facts are silent as to any warning of danger in or around the lab. However, for boys like Joe, it is argued that
danger will be obvious. Even if S2(4)(a) OLA 1957 requires that adequate warning to keep the visitor safe is necessary to
discharge duty, where danger is obvious warning is not required: Darby v National Trust. DCC may have failed to
discharge their duty here and liability may be established under OLA 1957.

However, it is possible for DCC to rely on the volenti defence under S2(5) against Joe, as argued above under
S1(6) OLA 1984, given that Joe will most likely be deemed aware of the risks of his adventure. Having acted as he did, he
will satisfy the requirements of knowledge and willing acceptance of risk on the facts, in the same way as the claimant in
Keown. Thus, ultimately, Joe’s claim will fail against DCC under OLA 1957. In light of the above, Joe will fail to establish
liability against DCC under both Acts.

Finally, in relation to Laura, the paramedic, since she was duty bound to enter the premise to rescue the boys,
DCC will have to accept her as a lawful visitor with either a licence or implied permission to enter. Her claim will be
considered under OLA 1957, and as discussed above for Joe, she will be owed the common duty of care pursuant to S2(1).
In Laura’s case, since she was injured due to the chemical leak, which by that time was the very thing that made the
premises dangerous, her injury is clearly premise-related. As to whether they fell below the standard of care in S2(2), DCC
would argue that there was not much they could have done to minimise harm to Laura.

It will be argued that since Laura is a paramedic entering the premise to carry out her calling, DCC are entitled to
expect her to take precaution to protect herself against “special risks ordinarily incident to her calling”, S2(3)(b) OLA
1957. As to whether the dangers of burns due to chemical leak are ordinarily incident to the work of a paramedic, the fact
that special suits are usually supplied to paramedics suggests that the kind of risk encountered is known and familiar to a
paramedic. In this sense, Roles v Nathan may apply, that if a risk is known to the skilled visitor, he must take precaution
for his own safety and the occupier is absolved of responsibility. By contrast however, in Ogwo and Salmon v Seafarer it
was held that even though the risk of burns was an ordinary risk of a fireman’s work, the magnitude of the fire in both
cases were so extraordinary as to fall outside the scope of “special risks ordinarily incident” to the work of a fireman. If
this is applied here, then it may be accepted that even though the risk of burns is ordinary, the risk in question, chemical
leak causing burns is extraordinary. Thus, S2(3)(b) may not apply and DCC may continue to be liable.

However, DCC will argue that despite knowing the danger and that protective gear was not available, Laura chose
to risk her own safety. This may be argued as a risk known and willingly accepted by the visitor, thus, allowing DCC to
invoke the volenti defence under S2(6) OLA 1957. Yet, as demonstrated by cases such as Baker v Hopkins and Chadwick
v BRB, courts do not allow the volenti defence in rescue cases because rescuers act out of necessity and not willing
acceptance of risk. Thus, the volenti defence will fail also as demonstrated ordinarily in White v Blackmore, where even
if the risk of danger is known, visitors cannot be said to have willingly accepted them where the extent of the risk is not
obvious.

Lastly, DCC may argue instead, the Laura was perhaps contributory negligent pursuant to S2(3) OLA 1957 in
that she entered the premise without the protective clothing. This may be regarded as a failure to take care on her party,
but given the needs of the situation, it is unlikely that the court will find Laura to be contributory negligent. Indeed, it was
the ambulance that failed to supply her with the protective clothing. She may in turn, bring an action under common law
negligence against her employer for failing to supply her with the necessary protective gear at the time. Liability should be
easily established.

In conclusion, neither Joe nor Ken will succeed against DCC under occupier’s liability law. Joe may have a claim
against DCC in respect of Ken’s actions under common law negligence. Laura will, however, be able to recover
compensation for her injuries against DCC under occupier’s liability and her employer under common law negligence,
with liability being shared between the two.

46
2012 (A) Q5
Lisa acquired a site for a fairground. It is surrounded by barbed wire and there are notices round the perimeter:
“Danger. Site closed. No entry.” Guile Ltd is the main contractor for the development. Slapdash Ltd is a
subcontractor and installed several features of the fairground. Maria, the site manager, an employee of Guile, visits
the empty site to check the quality of the completed work. She pulls across a bolt on the perimeter gate but does not
lock it. Nick and Olly, both 14, find some boxes and manage to climb up, lean over the top of the door and pull back
the bolt. Nick climbs to the top of a newly installed chute. It begins to wobble because one of the supports has not
been properly stabilised. In panic, Nick jumps to the ground. Olly breaks his fall, and he and Nick are injured. The
chute remains upright and Nick would have been safe if he had not jumped. Maria had inspected the chute and had
entered it as ‘satisfactory’ on her hand-held computer. Advise Nick and Olly.

Answer guide:

1. Nick & Olly as trespassers – they have no permission to enter – signs are clear – site closed, no entry – claim
under OLA 1984 – do not fall under any of the visitor definitions in OLA 1957

2. Will the claim fall under S1(1) – injury due to state of premises or things done or not done, or due to their own
careless acts – discuss Tomlinson, Keown – note the chute was not properly stabilised but certified as satisfactory.
They also climbed onto it and jumped when it wobbled - unclear whether chute was in fact unsafe or whether
injury was truly due to their act alone – discussion can go either way

3. Proper defendant: Lisa & Guille – have sufficient degree of control (Slapdash are subcontractors only and installed
only some features – may not have the necessary degree of control) – Discuss S1(2), Wheat v Lacon, Ferguson
v Welsh, AMF v Magnet Bowling.

4. Place amounts to premise – S1(2) & S1(3)(a) OLA 1957

5. Injury is recoverable – personal injury (S1(8) OLA 1984)

6. Whether duty is owed – discuss S1(3)(a), (b) & (c) OLA 1984, Tomlinson, Swain, Donoghue v Folkestone,
Siddorn v Patel – unlikely OTF

7. Standard of care – reasonable care taken – notice placed outside – sufficient under OLA 1984 towards trespassers:
S1(4), S1(5) OLA 1984, Westwood v Post Office, Keown

8. In any event, occupiers will rely on Keown – volenti defence: S1(6) OLA 1957

9. Liability will not be established under OLA 1984

10. Alternatively, Nick & Olly as lawful visitors – Maria did not lock the gate properly – enabled entry – failure to
properly close off premise or secure against trespass – gate left open – restriction not sufficient – implied
permission: Gould v McAuliffe, Lowery v Walker

11. Under OLA 1957, preliminary issues such as occupier, type of injury, premise apply as discussed above and will
be satisfied

12. Duty under OLA 1957 – owed in respect of both occupancy and activity duty – will cover both the condition of
the chute and the fact that it could be used in a manner that endangers the visitor (S2(1), Cunningham). Duty
owed to Nick and Olly

13. Standard of care (S2(2) – reasonable care to ensure safety of visitor on premise). Higher standard where danger
not obvious or visitor vulnerable (English Heritage v Taylor, G4s v Manley), but lower standard where danger
obvious (Darby v National Trust). At time accidents cannot be avoided – occupier not deemed to have fallen

47
 below standard: Tedstone v Bourne Leisure, Edwards v Sutton LBC. But where claimant acted unreasonably
(climbing wall when there are other safer ways), no breach by occupier: Clare v Perry.

14. Higher standard of care for child visitors (S2(3)(a)). OTF: allurement present - more safety precaution needed.
Moloney v Lambeth, Glasgow Corporation v Taylor, Jolley v Sutton LBC. Parental responsibility not applicable.
Slightly older children. Yet, at times certain accidents involving children are not the fault of either occupier or
parent: Bourne Leisure v Marsden

15. Warning was given on the facts (S2(4)(a)) – evaluate whether sufficient – Rae v Mars, Roles v Nathan

16. Occupiers may shift blame to IC (S2(4)(b)) – evaluate whether they may say this is faulty execution of work by
Slapdash the subcon – discuss Haseldine v Daw, Woodward v Mayor of Hastings, Ferguson v Welsh.

17. Can volenti or contributory negligence be argued – volenti unlikely but maybe contributory negligence (S2(5),
S2(3), White v Blackmore)

18. Liability may not be established against Lisa and Guille – facts state that chute was newly installed, nothing would
have happened if they did not jump and it was certified as satisfactory by Maria, indicates no fault on either IC or
occupiers’ part.

19. Injury most likely due to their own actions. Claim will fail under OLA 1957 as well.

2012 (B) Q5
Frank owns and operates a funfair. It is in need of substantial renovation and is at present closed. There is a notice
at the entrance reading: “Warning. The site is at present closed and parts of it are in a dangerous condition.”
Gremlins Ltd wishes to tender for the electrical work at the site. With the permission of Frank, Harry, who is
employed by Gremlins Ltd as a senior estimator, visits the site. He takes with him Irene, who has recently started
work at the firm as an apprentice electrician. While Harry is discussing costs with Frank, Irene takes a look round
the funfair and decides to start up the dodgem cars. The dodgems have not been used or inspected for some time,
and some of the wiring has deteriorated. When Irene starts the dodgems, there is a vivid flash: Irene is electrocuted
and suffers serious injuries. Advise Irene as to any possible claims against (i) Frank and (ii) Gremlins Ltd.

Key issues:

1. Irene v Frank – under occupiers’ liability:

i) Frank owns and operates the funfair – he would be an occupier as he satisfies the control and occupation
requirement (S1(2) OLA 1957 & 1984, Wheat v Lacon) & the place is a premise (S1(3)(a) OLA 1957; S1(2)
OLA 1984) – fixed structure

ii) Needs renovation and substantially closed – entry is restricted and there will be danger on the premise

iii) Notice at entrance (“Warning. The site is at present closed and parts of it are in a dangerous condition”) – there is
danger on the premise which Frank acknowledges and is aware of and has given notice of. Warning has been
given, may be sufficient since the place is also closed. (S2(4)(a) OLA 1957 on whether sufficient warning given
to keep visitor safe on premise – Westwood v Post Office, Roles v Nathan, Rae v Mars, English Heritage v
Taylor, Darby v National Trust)

iv) With the permission of Frank, Harry brings Irene onto the premise to inspect – she is newly hired – works as an
electrician – Irene is a lawful visitor & a skilled visitor at the same time (S1(2) OLA 1957 on visitor status and
S2(3)(b) OLA 1957 on skilled visitor provision – whether Frank can say that he is not responsible for her
electrocution since it is a special risk ordinarily incident to her calling – Roles v Nathan, Salmon v Seafarer,
Ogwo v Taylor, Williams v D.O.E

48
 v) Dodgems have not been used or tested for some time – wiring deteriorated – relevant to the fact that there is
danger on the premise – the electrocution is injury due to dangerous state of premises (S1(1) OLA 1957). Also,
duty of care will be owed – this falls under occupancy duty, S2(1) OLA 1957, Dunster v Abbot

vi) Irene starts the dodgems, vivid flash, electrocution and serious injury – does this count as special risk ordinarily
incident to her calling as electrician? Section and cases as stated above. Also, whether Frank can argue that he
gave notice of danger and that she should not have started the dodgems – that it was her careless act that caused
her injury, not the state of premises – if yes, then Frank may not be liable under OLA 1957 or at all: Tomlinson,
Kolasa. Also, can the volenti defence be argued here (S2(5) OLA 1957) or contributory negligence alternatively
(S2(3) OLA 1957)

2. Irene v Gremlins – under employers’ liability (discussed in revision notes for the respective chapter)

2011 (A) Q6
Nathan is the owner of a large country house which he hires out for weddings and other functions. The house had
been booked for a large wedding party on a Saturday. In the house, there is an upper reception room overlooking
the main hall. On the Friday, Nathan discovered that part of the balustrade at the edge of the upper reception room
had become loose. He had difficulty finding a carpenter who could come at short notice. He had however received
a card through his letter box a few days earlier which read: “For your carpenting and other woods works. Good
worker. References available. Call Dez on mobile tel. 01234 56789.” Nathan called Dez who came promptly. After
he had completed the work, he laid his heavy drill on a table in the hall. One of the legs of the table was unstable
and, under the weight of the drill, the table gave way. The drill fell on Dez’s leg, causing him serious injuries. Nathan
examined the balustrade and thought that the workmanship was satisfactory. On the Saturday guests pressed
against the balustrade to take photographs of the bridal party arriving: the balustrade gave way and three guests,
Tom, Dick and Harry, fell into the hall suffering serious injuries. Advise Nathan as to his liability in tort to (a) Dez
and (b) Tom, Dick and Harry.

2011 (B) Q6
Alan owns a number of holiday cottages, which he lets out to visitors. Betty and Clive have booked one of these
cottages. On the day before they were due to arrive, Alan discovered that the electric light in the bathroom was not
working. He had difficulty in finding an electrician who could come at short notice. He had however noticed a card
placed in the window of a local news agents shop, which read: “For all electrical and other DIY problems. Fully
qualified. Speedy service. Call Dave on mobile tel. 01234 56789.” Alan called Dave who came promptly. After he
had completed the work, he laid his heavy equipment on a shelf fixed to the wall in the bathroom. The shelf gave
way and the equipment fell on Dave’s leg, causing him serious injuries. Soon after arriving at the cottage Clive went
for a shower and received a severe electric shock. Advise Alan as to his liability in tort to (a) Clive and (b) Dave.

Answer guide:

Key issues:

1. Facts of both questions are similar – issues to be discussed are as follows

2. In both Qs, there are claims by guests injured due to the work of independent contractors (Clive in ZB question –
severe electric shock after Dave fixed the electric light in the bathroom; T, D & H in ZA question – falling after
leaning on the balustrade fixed by Dez)

3. In both Qs, there are claims by skilled visitors (Dez in the ZA question and Dave in the ZB question) – both are
lawful visitors, their claims will be brought under OLA 1957.

4. Clear and undisputed issues:

® Injuries were due to the state of premises, so claims will fall within the ambit of legislation (S1(1) of OLA
1957) – table, shelf, light and balustrade

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 ® All types of injuries are claimable under OLAs – physical injuries

® Place amounts to premise (S1(3)(a) OLA 1957) – fixed structure – large country house & holiday cottage

® The defendants (Nathan in ZA question and Alan in ZB question) are clearly occupiers because they own
the place and have sufficient degree of control (S1(2) OLA 1957, Wheat v Lacon)

® All claimants are lawful visitors under S1(2) OLA 1957 – Dez & Dave were permitted to enter to carry out
repair works (also fall under S5(1) OLA 1957); and Clive, T, D & H are guests)

® All are clearly owed a common duty of care – occupancy duty – occupiers owed them duty to ensure that
premises are safe for their use (S2(1) OLA 1957) – table, shelf, balustrade, light switch come under
occupancy duty

5. Disputed – needs to be discussed and debated on facts:

® Standard of care – reasonable care to ensure premise is safe for intended use – (S2(2) OLA 1957, Edwards
v Sutton LBC, Tedstone v Bourne Leisure) – were the incidents unexpected and unavoidable accidents or
carelessness which could have been prevented

® Whether occupiers can say that injury was the result of special risks ordinarily incident to the work of a
carpenter and an electrician respectively – for Dez and Dave (S2(3)(b) OLA 1957, Roles v Nathan, Ogwo
v Taylor, Salmon v Seafarer, Williams v D.O.E, Naeme v Johnson) – OTF the table and shelf were not
strong enough to support the equipment – these are premise related and not expertise related – may be argued
both ways

® Whether occupiers gave warning of the state of premises being unsafe or newly repaired – whether danger
was obvious or warning was necessary (S2(4)(a) OLA 1957, Roles v Nathan, Darby v National Trust,
English Heritage v Taylor)

® Whether occupiers can rely on the independent contractor argument – Alan hired Dave and Nathan hired
Dez – with regard to Clive, T, D & H’s injuries, will the occupiers be able to say that their duty had been
discharged by hiring ICs (S2(4)(b), Haseldine v Daw, Ferguson v Welsh, Woodward v Mayor of
Hastings)

® Whether volenti may be argued (S2(5) OLA 1957, White v Blackmore)

® Whether contributory negligence may be argued (S2(3) OLA 1957)

2010 (A) Q6
Wurzel, a farmer, organised a funfair on two of his fields to raise funds for a charity that he supported. Among
other attractions he contracted with Dan’s Daredevilry Ltd, a company that owns and supplies fairground
equipment, to set up a chair-o-plane. Louis, aged 12, attended the funfair with a group of friends. His friends
suggested taking a ride on the chair-o-plane but Louis protested that he suffered from vertigo and was terrified of
heights. Dan overheard this and said, “Your mates will all think you are a great wimp. There’s nothing to it. It’s
just like being in a plane. There’s a bar holding you in. You can’t fall.” Louis therefore went on the ride but panicked
and started screaming, “Stop it. Let me out. I can’t stay here.” When his chair reached the bottom of the ride, he
found that he could squeeze up from under the bar to jump out, but hit his head on a post and was knocked out. He
was taken to hospital. His mother, Stacey, was called and went straight to the hospital. Louis received expert medical
treatment but never regained consciousness. After several weeks doctors told Stacey that he was in a persistent
vegetative state and she agreed that his life support machine could be switched off and Louis died. Stacey had been
at his bedside for almost all the time since the accident. She now suffers from a serious psychiatric illness. Advise
Stacey in respect of Louis’ death and her own illness. [Do not discuss any possible liability of the manufacturers of
the chair-o-plane.]

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Answer guide:

1. The question deals mostly with occupier’s liability – OLA 1957 & 1984

2. There is a need to also discuss duty of care for psychiatric harm in this question

3. Claimant: Stacey on Louis’ behalf for his death and for her own psychiatric illness

4. Defendant: Wurzel (main occupier), but Daredevilry (DD) is also a potential defendant

5. Claim in respect of Louis’ death:

i) Whether injury was due to the state of premises, anything done or not done (S1(1) OLA 1957, 1984). If injury
was due to the careless act of the occupier it may call under negligence instead: Ogwo, Revill. But Tomlinson
says it may fall under OL as well (things done/ not done). If injury was due to the careless act of another person
authorised by the occupier to be on the premise (like a contractor or another visitor), liability should fall under
negligence also, because it was a careless act: Bottomley, Naylor) But Tomlinson says it may fall under OL as
well (things done/ not done). It injury was due to the careless act of the claimant himself, it cannot fall under
OL or negligence – Cl.’s own fault: Tomlinson, Kolasa, Keown, Rhind. OTF: Louis was scared, squeezed out
and jumped hitting his head on the post – own act – comparable to Keown and Rhind. Liability may not arise
under 1957 and 1984 Acts, as well as negligence. But if court distinguishes on the basis that Louis had vertigo,
and a fear of heights and that he acted in desperation and not deliberately, he may be distinguished from the
claimants in the above cases. Since the incident also was not specifically caused by any careless act of the
independent contractor Dan, it cannot be said that Bottomley will apply to direct the claim to common law
negligence. If at all it can be argued that the ride was not safe after all (possible to squeeze out of it and jump
off), then it can be forced into the ambit of occupier’s liability – injury due to state of premises, things done/ not
done properly by occupier. The answer will proceed to hypothetically discuss the occupier’s liability under
OLAs.

ii) Whether the place amounts to a premise: S1(3)(a) OLA 1957, S1(2) OLA 1984 - yes, field, ride = fixed and
movable structure

iii) The proper occupier who may be sued: S1(2) OLA 1957 & 1984, Wheat v Lacon – those who have sufficient
degree of control. There may be dual occupation. Independent contractors who have control of the circumstances
resulting in injury may also be occupiers: Furmedge v Chester-Le-Street. OTF: Wurzel is the owner of the farm
and organiser of the funfair. He would be the main occupier. But contractors and those holding the event can
also be occupiers, so since the incident is related to Louis’ use of the chair-o-plane operated by DD, DD may
also be an occupier like in Furmedge.

iv) Whether Louis was a lawful visitor or trespasser at the time: S1(2) OLA 1957. Louis presumably paid to board
the ride, was asked to by Dan and was a customer/ guest at the funfair. He would clearly fall under “invitation
or permission” under S1(2), thus, a lawful visitor.

v) His claim will be discussed under OLA 1957

vi) Duty of care under OLA 1957, S2(1) – common duty of care – occupancy duty and at times, may include activity
duty too (judicial opinion is varied on this point as illustrated above). If it is accepted that the incident is due to
the dangerous state of premises at least in part, then it will fall under the common duty owed by the occupier
(occupancy duty).

vii) Standard of care under OLA 1957, S2(2) – duty to take reasonable care to ensure that the visitor is reasonably
safe in using the premise. Whether reasonable care was taken will depend on the fact that Louis was a child

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 viii) Child visitors under OLA 1957, S2(3)(a) – occupier must take more care because children are less careful
compared to adults. Especially in cases like a funfair or place open to children – Moloney v Lambeth, Perry v
Buthins. Louis was there with his friends, was afraid of heights and had vertigo. It is reckless to pressure him
to ride the chair-o-plane by himself let alone allow him to do so. Parental responsibility won’t apply here –
seeing that Louis attended with friends. However, occupier may also argue that it cannot be foreseen that he
would act as he did, this was an unfortunate split-second accident and children sometimes suddenly and
unexpectedly endanger themselves and it happens too quickly for anyone to prevent harm to the child. If this
accepted, no breach by the occupiers: Bourne Leisure v Marsden.

ix) Independent contractor, S2(4)(b) OLA 1957 – If found in breach, Wurzel will argue that he hired DD, it was
reasonable to do so and the incident was due to the fault of DD’s ride not being completely safe, and Dan should
not have pressured Louis. To rely on this section Wurzel needs to show that it was reasonable to entrust work to
DD, and Wurzel took steps to check that DD was competent and the work was done properly. Wurzel could not
have ensured that the work was done properly – the structure and its safety features – technical (Haseldine).
However, facts do not indicate that Wurzel checked to ensure that DD was competent. In Gwilliam, occupier
held a funfair on hospital’s premise, Cl. injured while participating in splat wall game. IC’s insurance had
expired, occupier did enquire but assured otherwise. Occupier satisfied S2(4)(b) and was not liable. But the facts
are silent about insurance. In Bottomley, occupier failed to ensure that contractor conducted fireworks display
carefully. IC asked Cl. to assist and Cl. was injured in the process. IC was also uninsured. Occupier could not
rely on S2(4)(b) because it did not check that the IC was competent. But because injury to visitor was due to
IC’s careless act, liability arose under negligence instead. Dan’s role in Louis’ death is comparable to that of the
IC in Bottomley. Applying Bottomley, Wurzel may not be liable under occupier’s liability but common law
negligence instead, for the manner in which Dan got Louis on the ride leading to his death. Alternatively, if
Wurzel did take all safety measures to satisfy himself that DD is competent, then he will be protected by S2(4)(b)
and will be absolved of all liability. The result is that. If Wurzel is absolved of liability, DD may still be liable
for their actions either as occupier under OLA 1957 or alternatively, under negligence.

x) Volenti defence under S2(5) OLA 1957. If Wurzel and/or DD are found liable under OLA 1957, they are likely
to argue that Louis consented to being there and riding the chair-o-plane and therefore willingly accepted risks
of injury. He also chose to squeeze out and jump off before the ride stopped, and so may be said to have willingly
taken the risk of injury upon himself. However, given that he is young, became terrified, already suffers from
vertigo and fear of heights, it is impossible to say that he willing accepted the risk of injury by jumping off. He
did so under pressure and there is no real appreciation of risk or willing acceptance. He is unlikely to have been
fully cognizant of the consequences of his actions. Volenti will not apply. Corr v IBC.

xi) Contributory negligence defence under S2(3) OLA 1957. The occupiers may instead argue that Louis was
contributory negligent by jumping off the way he did – children have been found contributory negligent
(Jackson v Murray). However, the dilemma principle may apply here – he was terrified (Jones v Boyce) and
was yelling for the ride to be stopped so he could get off. The defence will not apply.

xii) In conclusion, Wurzel and/or DD may be found liable for Louis’ death either under OLA 1957 or negligence
alternatively, subject to the courts finding on S2(3)(a) and S2(4)(b) above.

6. Claim in respect of Stacey’s psychiatric illness:

w OLA 1957 & OLA 1984 are silent as to whether occupiers may be liable for psychiatric injuries caused to
visitors or trespassers as a result of the dangerous the state of premises.

w It must be evaluated whether the claim arises from either:

i) State of premises were dangerous and caused physical injury and the Cl goes on to suffer psychiatric. In such
a case, the Cl will be able to recover damages for the physical injury against the occupier, provided the
conditions for liability are satisfied under either OLA 1957 or OLA 1984. Damages will be added for the
psychiatric injury caused by the physical injury by additional satisfying the common law duty of care

52
 requirements for primary victims of psychiatric harm (Page v Smith – foreseeability of injury – duty owed);
or

ii) State of premises were dangerous and Cl. was almost injured but luckily and narrowly escaped injury; but goes
on to suffer psychiatric injury instead. Here because no physical injury was caused neither OLA 1957 nor
OLA 1984 can be used to establish liability against the occupier under this branch law. Alternatively, the Cl
will bring an action under common law negligence against the occupier for negligence that put the claimant in
danger of physical injury – the claim will be as primary victim as well. Page will apply – since Cl. narrowly
escaped injury, foreseeability of injury will be satisfied and duty will be owed; or

iii) State of premises were dangerous causing death/injury to a visitor/trespasser, and a family member of the
visitor/trespasser witnessed the death/injury and suffered psychiatric injury. This family member will be a
secondary victim and cannot claim under OLA 1957 or 1984 – no injury due to state of premises. Instead,
liability has to be established under either one of the Acts in respect of the physical injury/ death to the
visitor/trespasser and having done so, the secondary victim will establish duty of care for psychiatric injury
under common law.

w Stacey will fall under the third category. She will have to satisfy the requirements for duty applicable to
secondary victims: (i) Recognised psychiatric illness (Alcock) – satisfied OTF. (ii) Reasonably foreseeable
psychiatric injury (McLoughlin, Page, Hambrook) – satisfied OTF. (iii) Sudden shock (Alcock, Sion) – not
satisfied – several weeks went by before turning off life support – contrast with North Glamorgan NHST v
Walters. (iv) Proximty in relationship, time and space to incident or immediate aftermath and proximity in
perception (Alcock, McLoughlin, Taylor v Novo). She will satisfy proximity in relationship (mother-child)
and proximity in perception because she was with him when he died, but not proximity in time and space to
incident or immediate aftermath because weeks lapsed since the negligent event and the death resulting in her
psychiatric illness: Taylor v Novo. Her claim will fail.

2010 ZB Q6
Gummidge, a farmer, hired out two of his fields to a charity, the Hyenas Protection Fund, to hold a funfair to raise
money for the charity. The Protection Fund in turn arranged among other attractions for Frank’s Frolics Ltd to
set up a roller-coaster. Angela, aged 12, and a friend paid for admission to the roller-coaster and took their seats.
Basil, aged 14, climbed over the guard rail to the roller-coaster without paying an entry fee. At that moment, Clive,
the operator of the roller-coaster and employee of Frank’s Frolics, started the machinery for the roller-coaster
without noticing Basil. Basil leapt forward into the nearest carriage and landed on top of Angela. However, he lost
his balance, fell off and was seriously injured when he became trapped between the carriage and the platform.
Angela is a delicate child with brittle bones and she also was seriously injured. Advise Angela and Basil.

Issues:

1) Occupiers: Gummidge, HPF & FF – all have sufficient degree of control

2) Lawful visitors: Angela – injured when Basil leapt and landed on her, causing injury – her claim will be discussed
under OLA 1957 against the occupiers. Issues:

a) Whether her injuries were caused by state of premises or anything done or not done on them (S1(1) OLA
1957 & 1984). OTF, more likely due to Clive & Basil’s acts, not state of premises. G, HPF & FF may
be liable under occupiers’ liability for Clive’s actions – Clive was authorised to be there (Tomlinson).
Alternatively, they may be liable for Clive’s actions under negligence, also because he was authorised
by them (Naylor, Bottomley). However, they cannot be liable for Basil’s actions because he was
trespassing at the time, not authorised to be there (Ferguson v Welsh, Tomlinson).

b) Whether all three G, HPF & FF are occupiers (S1(2) OLA 1957 & 1984). OTF, yes, sufficient degree of
control. Contractors can be occupiers too, including event organisers: Wheat v Lacon, AMF v Magnet
Bowling, Furmedge

53
 c) Whether Angela is a lawful visitor or trespasser (S1(2) OLA 1957) – she paid to get on the ride – clearly
a lawful visitor. Will claim under OLA 1957

d) Place amounts to premise (S1(3)(a) OLA 1957, S1(2) OLA 1984) – roller coaster = movable structure.

e) Common duty of care owed to Angela (S2(1) OLA 1957 – may include occupancy and activity duty –
Tomlinson, Cunningham

f) Standard of care (S2(2) OLA 1957) – with a roller coaster, risk of injury is great – reasonable care would
require the person operating the ride to be more careful – dangers may not be obvious

g) Child visitor (S2(3)(a) OLA 1957) – Angela is a child visitor, occupiers had to be more careful – cannot
allege parental responsibility because children are allowed to ride on their own, but operator needs to be
alert: Moloney v Lambeth, Perry v Buthins, Phipps (won’t apply)

h) Independent contractor argument (S2(4)(b) OLA 1957) – G & HPF will argue that the injury was due to
faulty or careless execution of work by IC (FF) – Clive did not notice Basil, did not stop the ride fast
enough, did not stop Basil. To successfully rely on the IC section, G & HPF must show that it was
reasonable to entrust work, and steps were taken to check and ensure that FF are competent and the work
was done properly. (Haseldine v Daw, Ferguson v Welsh, Gwilliam, Naylor). If successfully in proving
all conditions, G & HPF will no longer be liable. Instead, FF may continue to be liable either as occupier,
or under negligence for Clive’s carelessness. Otherwise, all three occupiers may be liable under OLA
1957 for Angela’s injury.

i) They cannot raise any defences against Angela, none apply. Also, they cannot argue that she has brittle
bones and her injury is not foreseeable. Eggshell skull rule applies. Angela will succeed, either against
all three occupiers, or at least against FF.

j) Alternatively, she may sue Basil for jumping on the roller coaster causing her injury (under common law
negligence).

k) The type of injury in question is also recoverable under both occupiers’ liability and negligence (personal
injury)

3) Trespasser: Basil – leapt onto the carriage without paying fee – clearly a trespasser – will sue under OLA 1984.
Issues:
a) Claim will be brought against same occupiers

b) Other preliminaries are satisfied, premise, type of injury, occupiers

c) Because Basil did not pay to use the roller coaster he is a trespasser – his unlawful conduct of leaping
onto the roller coaster will also render him a trespasser

d) Will be able to claim under OLA 1984 – occupiers will argue that his injury is due to his own careless
act rather than the state of premises: Tomlinson, Keown, Rhind. Claim cannot fall under S1(1) OLA
1984.

e) In any event, duty of care will not be established – no danger known to occupiers and no reason to believe
or know that Basil will leap onto the carriage as he did and be in the said vicinity of danger. Also, no
danger against which protection is needed (S1(3)(a), (b) & (c) OLA 1984 will not be satisfied:
Tomlinson, Donoghue v Folkestone, Swain v Natui Ram, Siddorn v Patel)

f) Basil’s claim will definitely fail.

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2009 (A) Q2:
The Department of Law at the University of Toytown held a drinks reception in the foyer of the law building after
a lecture. The catering was provided by outside caterers, Salmonella plc. During the reception three wine glasses
accidentally fell to the floor and were smashed. Karl, a waiter provided by Salmonella, swept the glasses to the side
of the foyer and left them for the cleaner to deal with in the morning. The cleaning is carried out by Filthywipe plc
under contract with the university. Lucia is employed by Filthywipe and her duties include cleaning the law
building. She is a single mother with a year-old son called Marcus. She had been unable to find suitable child care
arrangements for Marcus and very often had to bring him to work with her. This is contrary to the terms of her
employment with Filthywipe, but some of the security staff employed by the university had seen Marcus with Lucia
and had not stopped her. On the morning after the party Marcus crawled round the foyer while Lucia was working.
He crawled to the place where the broken glass had been left. He picked up and started to eat some crisps which
had fallen to the floor but also picked up and swallowed a shard of broken glass. His mouth and throat were badly
cut. Discuss Marcus’s possible claims in tort.

Key issues:

1. Lucia will sue the university for Marcus’ injuries under OLA 1984 alternatively OLA 1957

2. Injury was due to the state of premises – broken glass left on the premises – dangerous premises – S1(1) OLA
1957, 1984

3. The University is the proper occupier with the necessary degree of control – S1(2) OLA 1957, 1984

4. The place amounts to a premise – S1(3)(a) OLA 1957, S1(2) OLA 1984

5. Marcus is not permitted to be there – at first instance will be regarded as a trespasser based on Lucia’s contract
prohibiting her from bringing her son to work – discuss S1(2) OLA 1957

6. Marcus will be discussed under OLA 1984

7. Duty of care – must be shown that the University knew or had reasonable grounds to believe the danger exists,
Marcus will come into the vicinity of danger and the danger requires protection. OTF: they only knew that he was
sometimes there but not clear whether they knew of the broken glass pieces. Duty may not be established. Discuss
S1(3)(a), (b) & (c), Tomlinson, Swain, Keown

8. Standard of care – may have fallen below given the nature of trespass – by one year old child and the university
was aware that he is sometimes present there. However, since they hired Salmonella and Filthywipe, may argue
that their responsibilities have been delegated and they do not fall below the standard of care. Discuss S1(4) OLA
1984, Platt v Liverpool

9. Alternatively, since security did not stop Lucia from bringing Marcus – saw but allowed – Marcus may have
implied permission under common law – also given Lucia’s state – single mum, unable to find carer for Marcus.
Discuss: Lowery v Walker, S1(2) OLA 1957

10. Marcus may be discussed under OLA 1957

11. Duty of care – occupancy duty is owed to ensure premise is safe – discuss S2(1) OLA 1957

12. Standard of care – failed to ensure that premise is safe without pieces of glass lying around, knowing that Lucia’s
little son is sometimes around. Discuss S2(2) OLA 1957

13. Child visitor – Marcus is very young – care is needed since they do not stop Lucia from bringing Marcus. But
they will argue parental responsibility – Lucia is responsible – unlikely that the university will be liable but court

55
 may find that even Lucia could not have prevented harm – discuss S2(3)(a) OLA 1957, Moloney v Lambeth,
Phipps v Rochestor, Simkiss v Rhonda and Bourne Leisure v Marsden.

14. Independent contractor – University will argue that they have delegated the work to IC (Salmonella) – fault is that
of Salmonella haphazardly dealing with the broken glass. But to discharge duty and avoid liability it must be
shown that it was reasonable to employ an IC (satisfied OTF), that steps were taken to ensure that the IC was
competent and that the work was done properly (may not be satisfied OTF – if the name of the contractor is taken
to indicate its level of competence, also whether the work was done properly could have been checked and upon
checking and noticing the carelessness of Salmonella’s waiter, the university could have cleaned up the mess first
since broken glass lying around is dangerous not just to children. Failure to do so will mean the university cannot
shift blame to the IC – discuss S2(4)(b), Ferguson v Welsh, Woodward v Mayor of Hastings (The same will
be concluded even if the IC argument is raised in respect of Filthywipe as well – may not be able to avoid liability)

15. The university will most likely be liable for Marcus’ injury under OLA 1957 – more likely that he will be regarded
as a lawful visitor with implied permission – no defences may be argued either, Marcus is too young. However,
if the court accepts that parental responsibility will apply then the claim will fail

16. Alternatively, Lucia may sue Salmonella under common law negligence – waiter handled the situation negligently
– negligent conduct will fall under negligence, not occupier’s liability – as a catering company as well, Salmonella
may not have the necessary degree of control in terms of safety of premise – contrast with Wheat v Lacon, AMF
v Magnet Bowling, Furmedge v Chester-Le-Street.

17. But a claim can certainly be pursued against the waiter (Salmonella vicariously), under common law negligence

2009 (B) Q2
Mr and Mrs Jones were having substantial refurbishment work carried out at their house by Jerrybuilders Ltd.
They went away for a weekend leaving their 17-year-old son Tom at home on his own. They told him that in no
circumstances was he to invite any of his friends into the house. Tom went out with a group of friends on the
Saturday night and took some of them home with him to play computer games. One of the friends, Sam, had been
playing football that afternoon and, without asking Tom, decided that he would take a shower. When he turned on
the shower tap, the head of the shower (which had been installed the previous week by Jerrybuilders) fell off and
hit him in the eye causing serious injuries. Sam had already lost the sight of the other eye as a baby and the injury
in the shower has left him nearly blind. Tom called an ambulance to attend to Sam. When Una, a paramedic, was
pushing Sam out of the house in a wheelchair to the waiting ambulance, she fell into a trench alongside the front
path. The trench had been dug by Jerrybuilders and covered with a sheet of metal, which was too flimsy to support
the weight of the wheelchair. Una broke her leg and was off work for several weeks. Sam did not receive any further
injuries. Advise Sam and Una.

Issues:

a) Sam:
i) When he first entered = lawful visitor – even though prohibited by Jones, Tom allowed him in – implied
permission. But at the point of injury, he would be a trespasser – did not ask Tom before using their bathroom
to take a shower – no implied permission to do so (discuss under OLA 1984) (does not fall under S1(2) OLA
1957, Lowery v Walker distinguished, The Calgarth applies – no permission to use the house as he did, he
has exceeded permission, no express notice prohibiting entry to bathroom is needed OTF, distinguish from
Gould v McAuliffe)

ii) Can he claim under OLA 1984 – injury was due to the state of premises (shower head not properly fitted) –
satisfies S1(1) OLA 1984

iii) Proper occupier – Jones – owner and occupier – have sufficient control and occupation of premise (S1(2)
OLA 1984 referring to S1(2) OLA 1957, Wheat v Lacon)

56
 iv) Place amounts to premise: S1(2) OLA 1984, referring to S1(3)(a) OLA 1957)

v) Type of injury recoverable – personal injury (nearly blind): S1(8) OLA 1984

vi) Duty of care will not be owed (S1(3)(a), (b) & (c) OLA 1984) – unclear whether they have reasonable
grounds to believe the shower head is in a dangerous state – arguably not as they would have expected it to
have been fixed. No reason to expect Sam at the vicinity in question at the time, and no protection required
on the part of Jones – already hired contractors. Discuss Tomlinson, Donoghue v Folkestone, Swain v Natui
Ram, Rhind v Astbury

vii) In any event, duty of care will be deemed discharged – hired contractor, told Tom not to allow friends into
the house – sufficient notice on their part (S1(4), S1(5) OLA 1984 satisfied)

viii) Unlikely that Jones will be liable – if at all, they will raise volenti against Sam (S1(6) OLA 1984, Keown).

ix) Alternatively, Sam can sue Jerrybuilders under common law negligence. The fact that Sam already has an
injured eye might will be relevant to the standard of care applied to him when discussing breach. After
discussing causation, if liability can be established, Jerrybuilders may raise the contributory negligence
defence against Sam (volenti is unlikely). Given that his vision is limited, he should not have tried to use the
premise without asking Tom first knowing that the house had just been through renovations and there may
be dangers less obvious to him. In any event the facts are silent as to whether the unsafe state of the shower
head was obvious.

b) Una:
i) Una entered the premise as a rescuer called to assist Sam – she is lawful visitor and her claim will be
discussed under OLA 1957

ii) Her injury is due to the state of premises – flimsy metal covering trench – falls within S1(1) OLA 1957

iii) The proper occupier is also the Jones – as discussed above for Sam (S1(2) OLA 1957)

iv) Her injury will be recoverable under the Act since it is personal injury (broken leg)

v) The place of injury amounts to premises (S1(3)(a) OLA 1957)

vi) She is a lawful visitor – has permission to enter (S1(2) OLA 1957)

vii) Duty will be owed under S2(1) OLA 1957 – falls under occupancy duty – duty to ensure safety of static
condition of premises (Dunster v Abbott)

viii) Standard of care – S2(2) OLA 1957 – reasonable care to ensure safety of visitor in using premise for intended
purpose

ix) The Jones will argue that she is a skilled visitor and they can expect her to guard against special risks
ordinarily incident to her calling (S2(3)(b) OLA 1957). The question is whether falling into a trench when
wheeling a patient out in a wheelchair, over flimsy metal covering a trench, is a risk inherent to the work of
a paramedic. Discuss Roles v Nathan, Naeme v Johnson, Ogwo v Taylor. If yes, Jones are no longer liable.
But arguably no, so they will still be liable.

x) Did they give warning of the state of premises (S2(4)(a) OLA 1957) – facts are silent – warning may not be
applicable either as the presence of a paramedic is unexpected. But the danger is not obvious (English
Heritage v Taylor, Roles v Nathan) – arguable

57
 xi) They will argue that they have discharged their duty – the incident was due to faulty execution of work by
IC – it was reasonable to hire Jerrybuilders, and provided they took steps to ensure that the IC are competent
and the work was done properly, they will not be liable: S2(4)(a) OLA 1957, Haseldinev v Daw, Ferguson
v Welsh, Woodward v Mayor of Hastings

xii) If they fail to rely on S2(3)(b) and S2(4)(b), they will be liable and may want to raise volenti (S2(6) OLA
1957) but this will not apply – Una did not knowingly accept risk of injury: White v Blackmore. Defence of
contributory negligence will not apply either – no evidence of fault on Una’s part (S2(3) OLA 1957).

xiii) Jones may not be liable – due to the IC section. Alternatively, Una may sue Jerrybuilders under common law
negligence as discussed above for Sam.

2008 (A/B) Q3
Gavin is a student at the University of Dumbsville. He lives in one of the halls of residence and knows that under
University regulations no one other than a registered student or a member of his or her immediate family is allowed
into the residences at any time. One morning Gavin takes his girlfriend Hilda back to his hall of residence. The
cleaning of the hall is undertaken by Swift Wipe Ltd under contract with the University. When Gavin and Hilda
arrive, they see a notice at the foot of Staircase A reading: “Swift Wipe Ltd. Cleaning in progress. Slippery floor.
Please use other staircase.” At the foot of Staircase B they see the same notice and conclude that it must have been
led by mistake. They go up Staircase B. Hilda slips on a patch of soapy liquid and drops her expensive mobile phone.
Gavin tries to catch her but falls and breaks his arm. Hilda’s phone is destroyed. Advise Gavin and Hilda.

Issues:

1. Whether Hilda is a lawful visitor or trespasser – at first instance = trespasser – no permission to enter - claim
should be considered under OLA 1984: Sections 1(1) (injury due to state of premise – soapy floor), 1(2) (place
amounts to premise and university falls within definition of occupier), 1(3)(a), (b) &(c) (whether duty of care
owed – unlikely on facts: Tomlinson, Swain, Donoghue v Folkestone, Siddorn, Rhind), 1(4) (whether reasonable
standard of care met on the facts, 1(5) (notice of warning given, Westwood v Post Office), 1(6), Keown (volenti)
& 1(8) (property damage not recoverable).

2. If Hilda is treated as having implied permission, then Hilda and Gavin may claim as lawful visitors under OLA
1957. Sections 1(1) (injury due to state of premises – soapy floor), 1(2) (both may be lawful visitors, Gavin is
student and he gave Hilda implied permission – Lowery v Walker), 1(3)(a) (the place amounts to premises), 2(1)
(common duty of care owed for unsafe premises – this falls under the university’s occupancy duty – Dunster v
Abbott), 2(2) (reasonable care needs to be taken, but danger is obvious and accidents happen – high standard of
care seldom applied – Edwards v Sutton, Darby v National Trust, Tedstone v Bourne Leisure, Clare v Perry),
S2(4)(a) (whether warning is sufficient: English Heritage v Taylor, Rae v Mars, Roles v Nathan) and S2(4)(b)
(whether the university may rely on the IC provision to absolve themselves of liability: Haseldine v Daw,
Woodward v Mayor of Hastings). If liability is established, defences may be raised (S2(5) volenti and S2(3)
contributory negligence). Only Gavin may claim, Hilda’s claim will most likely fail under both Acts.

ESSAY QUESTIONS

2017 (A) Q3:

“The operation of the Occupiers’ Liability Acts of 1957 and 1984 depends on the claimant being able to establish a
breach to the occupiers’ duty of care.” Discuss.

Answer Guide:

1. Question relates to law on occupier’s liability – liability depends on whether breach by occupier can be shown

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2. Answer will focus on the manner in which breach is determined under the acts, for both lawful visitor and trespasser
claims

3. Brief description about this area of law – deals with injuries caused by the unsafe state of premises, anything or omitted
to be done on the premise (S1(1) OLA 1957, 1984, Ogwo, Dunster). Where injury is caused by claimant’s own
careless act and not the premise itself, liability will not arise under either Act: Tomlinson, Keown, Geary, Kholasa.
H/ver at times, occupier may be liable for the dangerous state of premises, and activities carried out dangerously on
the premise: Cunningham, Tomlinson. Some judges take the view that if injury was caused by the act of another on
the premise/act of the occupier himself, liability should fall under negligence: Revill, Bottomley

4. Duty is owed automatically to lawful visitors: S2(1)

5. For non-visitors, liability also depends on whether duty can be established first – it is not automatically owed
(S1(3)(a), (b) and (c) OLA 1984, Tomlinson)

6. Liability does depend on breach:

a) S2(2) OLA 1957 for visitors – it must be shown that the occupier did not take reasonable care to ensure that
it was safe for the visitor to use the premise. However, this is not always easy to establish: Darby, Sutton,
Edwards, Cole-Davies, Tedstone - the standard of care applied in these cases show that the occupier does
not have to take a great deal of precaution – some precaution is sufficient (Sutton). Where danger is obvious,
occupier not liable for failing to take any precaution (Darby). Besides, the approach of judges is that accidents
are sometimes simply unavoidable (Tedstone), and sometimes where there hasn’t been an accident before,
the defendant is not liable for the current accident (Edwards). Occupier was only found liable where the
danger was serious where the visitor was more vulnerable and danger was foreseeable: G4S

b) S1(4) OLA 1984 for non-visitors/trespassers – it must be shown that the occupier failed to take reasonable
care in the circumstances. S1(5) goes further to state that as long as some notice is given to enable trespasser
to avoid risk, this would be sufficient. Where the occupier had taken precaution (Platt), or had given some
notice, there would be no liability (Tomlinson, Westwood)

7. But the issue of breach is also influenced by other factors for visitors:
a) Whether the visitor is a child (S2(3)(a))– in such a case the occupier is expected to take greater care – if he
fails to, then he will be found in breach (Moloney, Perry). If the premise contains something dangerous that
may allure a child, the occupier must take greater care, failing which he would be in breach: Glasgow
Corporation v Taylor, Jolley. H/ver where the occupier can expect the parent of a young child to watch out
for the child, and had done its part otherwise, the occupier will not be found in breach: Phipps, Simkiss, may
argue Bourne Leisure v Marsden

b) Whether the visitor is a skilled visitor (S2(3)(b)) – occupier may expect a skilled visitor to guard against
risks of the job: Roles, the occupier will not be liable. The occupier will only be found in breach if the danger
did not arise from the exercise of the skill (Williams v D.O.E.) or if it was extraordinary Ogwo, Salmon v
Seafarer

c) To show that he has not breached his duty, the occupier can show that he had given sufficient warning to
keep the visitor reasonably safe in using the premise: S2(4)(a). If this is shown, then the occupier would not
be found in breach, would not be found liable. H/ver the standard of warning is arguably high, where danger
is not obvious (English Heritage v Taylor), or where the visitor has no option but to use the premise, more
has to be done to ensure visitor’s safety: Roles – Lord Denning’s bridge analogy

d) Alternatively, occupier may show that he had discharged his duty by employing an independent contractor:
S2(4)(b). If it can be shown that it was reasonable to entrust work to an IC (Green v Fiberglass), and the
occupier took steps to ensure that the occupier was competent and insured (Bottomley, Gwilliam, Naylor)
and provided it is possible to check, and the occupier checked that the work was done properly then the
occupier is not liable. The occupier is not expected to check if the work is too technical: Haseldine,

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 Ferguson), but if he could have averted the danger despite engaging an IC, he must do so, failing which he
would be in breach: Woodward

8. An occupier also may not be liable if has given notice to exclude duty/ liability: S2(1) OLA 1957 – however this is
subject to UCTA 1977

2014 (A) Q4:

‘The law provides adequate redress to individuals injured as a consequence of unsafe premises.’ Discuss.

Answer Guide:

• “individuals injured as a consequence of unsafe premises” – relevant area of law is occupier’s liability – both Acts
will be analysed as the question does not single out either trespassers or lawful visitor

• The issue is whether the law provides adequate redress – to determine this, the sections need to be evaluated

• Start by evaluating the law for lawful visitors – OLA 1957 – evaluate the sections & case law:

i) S1(1) – scope of protection – anything caused by state of premises, anything done or not done – arguably
provides adequate redress – this section is sometimes interpreted generously: Tomlinson, Cunningham –
liability would only fall out of the scope of the act if it clearly was the result of an act unrelated to the
premise: Naylor, Ogwo, Revill – arguably fair – careless acts should be pursued under common law
negligence instead

ii) S1(2) – the definition of an occupier is generous – not limited to owners – based on control – this makes it
possible to get redress from more than one party – dual occupation is possible (Wheat), against independent
contractors also possible: AMF, Ferguson. The definition of visitor is also generous – includes those with
implied permission: Lowery

iii) S1(3)(a) – definition of premise – wide – fixed or movable structure

iv) S2(1) – the fact that duty is readily owed – plus point in favour of protection for visitors

v) S2(2) – reasonable standard of care does not impose heavy burden on occupier – may not be enough to
protect visitors – case law shows that the standard applied is relatively low – does not require occupiers to
take extensive precaution: Tedstone, Sutton, Edwards, Darby, Clare v Perry (2005)

vi) S2(3)(a) – occupiers are encouraged to take more care for children, especially where there is an allurement:
Moloney, Perry, Jolley, Glasgor Corporation v Taylor – this shows great protection – however no liability
at times, including where parents can be expected to watch out for the child: Phipps (note: Bourne Leisure
v Marsden)

vii) S2(3)(b) – protection for skilled visitors is limited: Roles v Nathan, Ogwo v Taylor

viii) S2(4)(a) – the interpretation of this section requires occupier to do a lot to make sure the visitor is safe:
Roles, English Heritage v Taylor

ix) S2(4)(b) – this doesn’t necessarily afford visitors protection – allows occupier to shift the blame away to
the IC: Ferguson v Welsh, Haseldine v Daw. However, this is not always the case – Woodward. Now that
the law requires occupiers to check if IC are insured, and competent, the failure to check could attract
liability: Gwilliam, Naylor, Bottomley – this leans in favour of better protection

x) S2(5) – the way the section is applied requires a great deal of knowledge and willing acceptance of risk
before the occupier can avoid liability: White v Blackmore – this afford more protection to visitors

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 xi) S2(6) – greater protection because even those entering under legal right are protected

xii) S5(1) – greater protection as even contractual visitors are owed duty

xiii) S2(1) – the fact that duty may be excluded is arguably fair, as it is still subject to UCTA

• Continue to evaluate the law for non-visitors/trespassers – OLA 1984 – evaluate the sections & case law:

i) Compared with the law in Robert Addie, now there is protection even for trespassers after BRB v
Herrington and the resulting OLA 1984 – this in itself is greater protection for trespassers – they may not
be owed a duty and may claim

ii) Although duty is not readily owed and they must satisfy criteria (S1(3)(a), (b) & (c)), it is suggested that
the availability of possible liability and duty to trespasser does mean that there is greater protection now

iii) However, it is difficult to satisfy duty, and even if duty is owed, it is mostly found that even minimal steps
taken to afford protection/ prevent a trespasser from being injured is usually enough for the occupier to
discharge his duty and avoid liability: Tomlinson, Keown, Donoghue v Folkestone, Rhind, Ratcliffe,
Swain, S1(4) & S1(5), Westwood v Post Office

iv) Important to note that child trespassers do not receive special treatment – so protection is not great in this
regard, however the fact that some protection under the OLA 1984 is more available now that before, does
mean that the statement in question is indeed true.

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