2017 zone B Q:4

This question requires discussion as to the applicability of Occupiers Liability. In

order to bring an action against occupier the claimant may under OLA 1957,
where they can claim both personal injury and damage to property. Also in OLA
1984, where the claimant can claim only personal injury. In this particular
question, it is necessary to advise Sam, Nathan, Eli and Mia as to their potential
claims against KG under OLA. The claims may arise under OLA 1957 and 1984
depending on whether they are lawful visitor and trespasser will be dealt
separetly.

Firstly, it is essential to establish whether KG is indeed an occupier capable of

being liable to claims from the injured parties. There is no straightforward
definition of ‘’occupier’’ in the statute, however in the case of Wheat v E Lacon, it
has been established that an occupier is one who has control over the premises.
The occupier should realize that the insufficient care may lead to injuries to the
visitor coming or present in their premises. As KG is a owner, he is the legal
occupier of premises and it’s his duty to ensure that the premises is safe for the
visitor as he exercises right of control on the property.

Sam’s claim against KG:

In this case we can see that Sam suffered a severe electric shock when he was
installing a running machine. As Sam is one of the Alpine’s engineer and was
employed to undertake work on the premises thus, Sam would have been
deemed to be a contractual entrant at common law, and therefore Sam is a lawful
visitor having permission to be on KG’s premises. As Sam is a lawful visitor OLA
1957 will apply to him. It must be noted that Sam suffered an injury while
performing the task he was employed to perform. According to s2(3)(b) of OLA
1957, an occupier of premises can expect an independent contractor to take
appropriate precautions against any risk normally associated with their work
( Roles v Nathan ) It is argued that as an electrician, the risk of being electrocuted
is a risk that Sam would normally be aware of. However, it has also been
mentioned that Sam is not familiar with installing running machine. This may be
relevant, as in the case of Eden v West it was held that s2(3)(b) does not cover the
risk not normally associated with the professional visitors line of work.
Nonetheless, Sam was negligent as he did not check the instruction manual
before attempting installation. He therefore, did not rake due case for his own
safety (Ogwa v Taylor) and it is nor most likely that G will be able to escape
liability for Sam’s injuries by virtue of s 2(3)(b).

Nathan v KG:

From the scenario it is clear that Nathan He is a fitness instructor at KG and he

had express or implied permission to enter the premises and will be consider as
lawful visitor under OLA 1957.

However, under s.2 (4)(b), it was stated that a visitor suffer damage due to faulty
execution of any work of construction, maintenance and repairs by an
independent contractor, the occupier will not normally be liable if certain
conditions are met. From the fact, the independent contractor was Alpine who
failed to take proper safety of visitors and from this inadequate repair Nathan
suffered head injuries when an overhead spotlight fell on him from the gym
ceiling. Here, KG maybe able to escape liability if he can prove that in all the given
circumstances: firstly, it was reasonable to KG to entrust the work to Alpine
builder Haseldine v Daw, secondly, KG took reasonable steps to ensure that
Alpine is a competent worker Ferguson v Welsh and thirdly, KG took reasonable
steps to ensure that works has been done properly Woodward.

Its noted that KG had employed Alpine as he known that Alpine was experienced
builder and they were reasonably competent to do the task. However, the key
question is whether KG’s inspection wasn’t complex in nature or technical in
nature and any ordinary person could have done it. Therefore, according to
Haseldine v Daw, it was reasonable for KG to inspect the work himself. It maybe
further argued that as a reasonable inspection KG would have easily found that
the work was faulty or not properly damage.

Hence, Nathan can argue that KG was failed to take reasonable steps and the
inspection was not reasonable. In this situation, the ‘but for test’ is satisfied and
there are no issues for remoteness. However, it is likely that KG will try to
establish and argue on reasonableness of his control, hiring Alpine and his
inspections. If he is successful is doing so, he maybe able to escape liability in
accordance to s.2 (4)(b). However, it’s very unlikely in this situation. Therefore, for
not proper inspection of work KG will not be able to discharge his duty of care,
next, it must be determined whether KG’s breach of duty had caused Nathan’s
injury, the relevant test is ‘’but for test’’, Cock v Kirby. Therefore, it can be said
that KG was under a duty to protect his visitor from damaged or dangerous
condition on his premises, his failure to take proper safety which has resulted
Nathan suffered injury and it was not too remote. So, it is highly likely that Nathan
can successfully bring a claim for personal injury and damage to his property.

Eli v KG:

In the scenario Eli was four year old son of Paul, who was with his father in the
Gym. So It is clearly said that Eli is a lawful visitor under s.1(2) of OLA 1957.

Therefore, it can be argued that KG owed common duty of care towards Eli, to
ensure that in all given circumstances that Eli was safe while using premises for
which he is allowed in for s.2(2) OLA 1957.

Under s.2(3)(b) it was stated that occupier should expect child visitors to be less
careful than adults and should reasonable steps to ensure their safety. KG must
have to take reasonable steps to ensure that the safety of children. The occupier
must bear in mind that children tend to be attracted to certain objects, unaware
that they are dangerous Glasgow Corp. v Taylor. On the other hand the case of
Jolley v Sutton HL held that the court should not underestimate children
capability in finding unexpected way of mischief and hence the types of accident
and injury was reasonable foreseeable in context of teenage. Here the fact Eli was
four year old and he did not know about the condition of entrance and was
attracted to the door, then fallen down a very steep stairwell causing him serious
injuries. So, Occupier should put any kind of allurement, in this case it was not
done by KG. Here, KG’s inspection was not reasonable. If Eli is able to prove that
KG failed to take reasonable steps to ensure that what is going through the Gym
then he is likely to be successful in bringing claim against KG. In this situation, the
‘but for test’ is satisfied and there are no issues for remoteness. However, it is
likely that KG will try to establish and argue on reasonableness of his control and
his inspections. If he is successful in doing so, he maybe able to escape liability in
accordance to s.2(3)(b). However, it is very unlikely in that situation. Therefore,
for not putting sufficient warning in front the door and child was attracted by
this, KG will not be able to discharge his duty of care, next it must be determined
whether KG’s breach of duty had caused Eli’s injury, the relevant test is ‘but for
test’, Cock v Kirby’. So, it can be said that KG was under a duty to protect his
visitor from damaged or dangerous condition on his premises but he failed to do
so. Therefore, Eli is likely to be successful in bringing a claim for personal injury
and damage to his property.

Mia v KG:

From the scenario, it can be said that Mia can bring a claim under OLA 1984.
Whilst it may at first appear harsh to impose a duty on occupiers for those that
have come on to their land uninvited and without permission liability was
originally recognized at common law for child trespassers where the occupier
was aware of the danger and aware that tresspassers, including children would
encounter the danger that was mentioned in British Railways Board v
Herrington. S.1(3) of 1984 states that for the occupier duty of care towards the
trespasser arise, ‘’the occupier have to be aware of the danger or he has to have
reasonable grounds to believe that the danger may come into the vicinity of
danger given in the circumstances of the risks the occupier may reasonably be
expected to offer the trespasser some protection Tomlinson v Congleton.
Therefore, it is most likely that duty was not expected to provide any protection
to the uninvited person who ignored the large notice which was displayed at KG’s
reception. Hence, the fact that the occupier had no duty in relation to the
property of tresspassers under s.1(8). So, KG will not have to pay any
compensation for damages caused by his premises. However, KG might be liable
for defective premises and then Mia might be successful.

Therefore, it is very likely that KG will try to argue on basis of reasonableness at

his control in order to escape from his liability which is unlikely to succeed upon.
All the potential claimants are likely to be able to bring a claim under OLA 1957
and 1984.