Defences for occupiers:

overview of defences:

there are 4 defences:

• contributory negligence

• consent (volenti non fit injuria)

• warning notices

• exclusion clauses

warning notices:

• can be verbal or written

• warning notices are are a complete defence when used properly

  • s.4 OLA 1957: ‘it was enough in the circumstances to enable the visitor to be reasonably safe’

warning notices cont.: sufficient warning

what amounts to sufficient warning is a matter of fact to be decided on a case by case basis but should be:

• clear

• accessible

precautions taken must be proportionate to the risks involved

warning notices case example: Rae v Marrs (UK) ltd:

• bf: C entered a dark shed which contained a deep pit. A warning sigh had been placed near the hazard but due to the lack of light the sign could not be seen

• li: was the warning sign alone sufficient to discharge the occupier’s duty under s.2(4) of the OLA 1957

• ratio: held that the warning was not sufficient as it was not visible in the circumstances — in cases involving serious or concealed dangers, additional safety measures are required

  • a warning must make the visitor reasonably safe not simply alert them to danger

warning notice case example: Staples v West Dorset District Council

• bf: C slipped on algae growing on a high stone wall near a costal path. THe presence of algae was a natural result of the environment and was clearly visible

• li: did the council fail in its duty by not providing a warning about an obvious danger

• ratio: held that no warning was necessary the danger was obvious and known (for a reasonable adult)

exclusion clauses:

• s.2(1) of the 1957 act enables an occupier to ‘restrict, modify or exclude his duty bu agreement or otherwise’

restrictions on exclusion clauses

• statutory restrictions: consumer rights act 2015, s.65 ‘ a trader cannot by term or notice exclude or restrict liability for death or personal injury resulting from negligence’

  • i.e a gym or hotel cannot avoid liability for injuries caused by putting a sign saying “we accept no responsibility for injuries”

• limitations in practice: even if an exclusion clause is there it may not be valid if the visitor can’t understand the risk

  • ie: if a child is hurt in a play area, the occupier might still be liable even if a warning sign is displayed bc the child may not fully understand the danger