Lesson 122. Defences under the 1957 Act | OCR A-Level Law
For Specification H418
OCR A-Level Law | Free Revision Notes
Estimated study time: 40 minutes
This Defences under the 1957 Act A-Level Law revision page examines the ways an occupier may limit or avoid liability towards a lawful visitor. OCR requires knowledge of defences within occupiers’ liability, and its assessment materials identify rules concerning skilled visitors, independent contractors, warnings, consent and contributory negligence. Some of these technically limit the scope of the occupier's duty rather than operating as traditional defences, but all are important when deciding whether a lawful visitor can recover.
Learning Objectives 🎯
By the end of this revision page, you should be able to:
Explain how the 1957 Act treats visitors exercising a trade or calling.
Explain how an effective warning may affect an occupier's liability.
Explain when an occupier may avoid liability for the work of an independent contractor.
Explain volenti non fit injuria and contributory negligence.
Apply the relevant rules selectively to lawful-visitor scenarios.
Reach supported conclusions about whether an occupier remains liable.
Revision Notes 📚
Where these rules fit into the 1957 Act
Before considering ways in which liability may be avoided or limited, the basic Occupiers’ Liability Act 1957 framework must normally be established.
As covered in lawful visitors and the common duty of care [Lesson 121. Occupiers’ Liability Act 1957], you should first consider:
whether D is an occupier
whether the location is premises
whether C is a lawful visitor
the common duty of care under s2(1)
the standard of reasonable safety under s2(2).
You can then ask whether a rule exists which limits or removes the occupier's liability.
OCR's 2025 mark scheme groups the relevant material into:
skilled or trade visitors under s2(3)(b)
independent contractors under s2(4)(b)
warnings under s2(4)(a)
consent under s2(5)
contributory negligence
possible exclusion of liability in appropriate circumstances.
Are they all technically defences?
Not quite.
It is useful to distinguish:
Rule | How it operates |
Skilled visitors | Limits what the occupier is expected to protect the visitor against |
Independent contractors | May relieve the occupier of responsibility for defective contractor work |
Warnings | May discharge the duty if sufficiently effective |
Volenti | Defence based on voluntary acceptance of risk |
Contributory negligence | Partial defence based on C's own contribution to the harm |
Exclusion or restriction | May modify the scope of the duty in certain circumstances |
OCR examiner materials discuss all of these when considering the limitations on the scope of the duty and possible defences.
For an exam problem, the label matters less than understanding how each rule affects the outcome.
Skilled visitors
Section 2(3)(b)
Section 2(3)(b) concerns a lawful visitor who enters premises in the exercise of a calling.
The occupier is entitled to expect that such a visitor will appreciate and guard against special risks ordinarily incidental to that calling.
OCR's principal authorities include:
Roles v Nathan
Ogwo v Taylor.
The rule recognises that a skilled visitor may have expertise which the occupier does not possess.
What is a calling?
The rule concerns a visitor carrying out their:
trade
profession
skilled work
other relevant calling.
The important question is not simply:
“Does C have a job?”
Instead ask:
Is the danger one of the special risks ordinarily associated with the work C has entered the premises to perform?
If it is, the occupier may reasonably expect the skilled visitor to deal with that danger using their specialist knowledge.
The risk must be connected with the calling
The fact that C is a skilled worker does not mean the occupier has no responsibility for anything that happens to them.
The rule concerns special risks ordinarily incidental to the visitor's calling.
For example:
A specialist cleaner may reasonably be expected to understand and guard against particular risks arising directly from the specialist cleaning work they have been engaged to carry out.
That does not mean the cleaner automatically accepts unrelated defects elsewhere on the premises.
This distinction is essential.
OCR example: specialist cleaner
OCR's 2022 assessment involved Eve, who entered premises under a contractual licence to undertake specialist cleaning work.
The mark scheme concluded that:
Eve was a lawful visitor
she entered in the exercise of her calling
under s2(3)(b) and Roles v Nathan, she should appreciate and guard against chemical-burn risks directly incidental to her work
the occupier was therefore not liable under the 1957 Act on those facts.
This provides a useful application model.
Application structure
Use:
Calling → particular danger → is it ordinarily incidental to the work? → C's expertise → conclusion
For example:
C is a specialist engineer engaged to repair industrial machinery. The danger arises from a technical risk ordinarily associated with that repair work. Under s2(3)(b), D may be entitled to expect C to appreciate and guard against that specialist risk.
Skilled does not mean responsible for every danger
Suppose a plumber enters a hotel to repair a pipe but is injured because an unrelated staircase has collapsed.
The fact that C is a plumber does not automatically relieve the occupier of liability.
The collapsed staircase is not necessarily a special risk ordinarily incidental to plumbing.
Therefore:
⚠️ Always connect the danger to the visitor's actual calling.
Do not simply write:
“C is a professional, so D is not liable.”
Independent contractors
Section 2(4)(b)
Sometimes an occupier uses an independent contractor to carry out work on the premises and a visitor is later injured because that work was carried out negligently.
Section 2(4)(b) may allow the occupier to avoid responsibility for that defective work.
However, employing a contractor does not automatically transfer liability.
OCR requires the occupier to satisfy important conditions.
The three independent-contractor requirements
OCR's assessment materials identify three questions.
1. Was it reasonable to entrust the work to a contractor?
The first question is whether it was reasonable for the occupier to employ an independent contractor to carry out the particular work.
OCR authorities include:
Haseldine v Daw
Ferguson v Welsh.
The more specialised the work, the more reasonable it may be to employ someone with appropriate expertise.
2. Was a competent contractor selected?
The occupier must take reasonable precautions to ensure that the contractor is competent.
OCR's 2022 mark scheme identifies Bottomley v Todmorden Cricket Club in relation to checking competence.
It is not enough for D simply to say:
“I hired somebody else, so it is their problem.”
The occupier should have a reasonable basis for believing that the contractor is capable of carrying out the work properly.
3. Was the work inspected where appropriate?
The occupier must also consider whether reasonable steps should have been taken to check the contractor's work.
OCR identifies:
Woodward v Mayor of Hastings
compared with Haseldine v Daw.
The need for inspection depends on the circumstances.
A very technical job may be difficult for an ordinary occupier to check personally.
By contrast, a simple defect may be something which could reasonably have been discovered without specialist expertise.
Independent contractor checklist
Remember:
Reasonable to hire → competent contractor → reasonable inspection where appropriate
If the occupier cannot satisfy the relevant requirements, s2(4)(b) will not necessarily relieve them of liability.
OCR example: defective contractor work
The 2022 paper included Layla, a customer injured following work carried out by an independent contractor.
OCR's mark scheme reasoned that:
using a contractor for the work was reasonable
the occupier had not checked the contractor's qualifications
the occupier had also failed to inspect work which did not require specialist technical knowledge to check
the occupier therefore could not rely successfully on s2(4)(b).
This is an excellent example of how to apply all three requirements rather than merely naming them.
Worked contractor example
Westhill Hotel hires Ellis Electrical to replace lights throughout the hotel. A guest is injured because one newly installed light fitting falls from the ceiling.
Assume the contractor's work caused the danger.
Ask:
Reasonable to employ a contractor?
Electrical work may reasonably be given to a specialist contractor.
Competence?
Did the hotel make reasonable enquiries to ensure that Ellis Electrical was competent?
Inspection?
Was the defect something the hotel could reasonably have discovered through an appropriate check, or would checking require specialist knowledge?
Conclusion
Only after applying these questions can you decide whether the hotel can rely on s2(4)(b).
Do not confuse the contractor with the occupier
The rule does not necessarily mean that nobody is responsible.
OCR's 2025 evaluative mark scheme notes that where the occupier is relieved of liability, the injured visitor may still potentially have an action against the negligent contractor.
For this lesson, the central issue is narrower:
Can the occupier avoid liability under the 1957 Act for the contractor's defective work?
Warnings
Section 2(4)(a)
A warning may allow an occupier to discharge the common duty of care.
However, OCR has highlighted this as an area where students frequently misunderstand the law.
Section 2(4)(a) does not mean that an occupier is under a universal statutory obligation to place a warning whenever there is a danger.
Instead:
If a warning is given, it will discharge the occupier's duty only if it is sufficient to make the visitor reasonably safe.
OCR's 2025 examiner report specifically identifies the idea that occupiers are always required to provide a warning as a misconception.
A warning is not automatically effective
The key issue is effectiveness.
OCR identifies authorities including:
Rae v Mars
Roles v Nathan.
A warning which merely tells C that a danger exists may not be enough if it does not allow C to remain reasonably safe.
Therefore:
Warning exists ≠ duty automatically discharged
The question is:
Was the warning sufficient in the circumstances to make the visitor reasonably safe?
The form of the warning
OCR's 2025 examiner report also warns against assuming that a warning must necessarily be a sign.
A problem question may contain information communicated in different ways.
The central issue remains whether the warning was effective.
Do not invent a warning sign which is not in the scenario.
Worked warning example
A visitor enters an area containing a dangerous drop.
The occupier merely displays a vague notice saying:
“Take care.”
The existence of a notice does not settle the issue.
You would ask:
Does it identify the relevant danger sufficiently?
Does it enable the visitor to remain reasonably safe?
Given the seriousness and location of the danger, was more required?
Only then can you conclude whether the warning discharged the duty.
Obvious risks
No automatic duty to warn against the obvious
OCR's 2025 materials recognise that the courts may find no duty to warn against an obvious danger.
Authorities include:
Darby v National Trust
Staples v West Dorset District Council.
This reinforces the point that s2(4)(a) is not a general requirement to put signs beside every risk.
The question is what reasonable safety requires in the circumstances.
Why obviousness matters
An adult visitor may reasonably be expected to recognise some obvious dangers for themselves.
The law therefore does not necessarily require an occupier to explain risks which are already apparent.
However, you must apply the specific facts.
Do not automatically state:
“The danger was obvious.”
Explain what makes it obvious to this lawful visitor in these circumstances.
Worked obvious-risk example
An adult visitor sees a clearly visible natural feature presenting an obvious danger.
If the nature of the danger is immediately apparent, an occupier may argue that there was no need to provide a warning of what the visitor could already see and appreciate.
OCR examiner materials link this approach to personal responsibility and the limits of the protection occupiers can reasonably be expected to provide.
Volenti non fit injuria
Section 2(5)
Section 2(5) preserves the defence of volenti non fit injuria.
In simple terms:
An occupier may avoid liability where the visitor willingly accepted the relevant risk.
OCR identifies White Lion Hotel v James as an authority in this area.
The defence is based on consent.
Knowledge is not necessarily enough
Do not assume:
“C knew there was danger, therefore volenti applies.”
The issue is whether C willingly accepted the relevant risk.
A visitor may:
know a danger exists
but still not freely agree to bear the risk of injury from it.
The facts must support genuine acceptance.
This reflects the wider operation of volenti required within OCR tort law.
Choice matters
OCR's 2025 mark scheme identifies Burnett v British Waterways Board for the point that volenti may not apply where the visitor had no choice other than to enter the premises.
This demonstrates why voluntariness matters.
To apply volenti, ask:
Did C know of the relevant risk?
Did C willingly accept it?
Was C's acceptance genuinely voluntary?
If those requirements are supported by the facts, the occupier may have a complete defence.
Worked volenti example
A lawful adult visitor knows that a particular activity involves a clearly identified danger and freely chooses to accept that danger.
If the facts establish genuine knowledge and voluntary acceptance of the particular risk which causes the injury, D may argue volenti.
However, if C had no realistic choice or merely knew that some danger existed without accepting the risk of injury, the defence is much weaker.
Contributory negligence
OCR also requires contributory negligence as a general tort defence, and the 2025 Occupiers’ Liability Act mark scheme identifies it as a possible defence under the Law Reform (Contributory Negligence) Act 1945.
Contributory negligence applies where the claimant's own conduct contributed to their injury.
Unlike volenti, it is a partial defence.
Its effect is to reduce the damages recoverable rather than necessarily defeating the entire claim.
Applying contributory negligence
Ask:
Did C fail to take reasonable care for their own safety, and did that conduct contribute to the harm?
If so, the occupier may argue that C should bear part of the responsibility.
This reflects the broader idea of personal responsibility within tort law considered in fault, defences and compensation [Lesson 109. Theory of tort law].
Volenti and contributory negligence compared
Volenti | Contributory negligence |
Based on voluntary acceptance of risk | Based on C contributing to their own harm |
Requires genuine consent to the relevant risk | Does not require C to have accepted the risk |
Can operate as a complete defence | Partial defence |
May defeat the claim | Reduces damages |
This distinction is extremely important.
A careless visitor has not necessarily consented to being injured.
Worked comparison
Suppose a visitor sees a clearly marked danger but behaves carelessly near it.
That may support contributory negligence if their carelessness contributes to the injury.
It does not automatically support volenti.
For volenti, the facts would need to show that the visitor knowingly and voluntarily accepted the relevant risk.
💡 Exam technique: Do not use the two defences as interchangeable labels.
Excluding or restricting the duty
Section 2(1) recognises that the occupier may, in appropriate circumstances, extend, restrict, modify or exclude the common duty.
OCR's 2025 mark scheme also identifies the possible relevance of exclusion clauses and the Unfair Contract Terms Act 1977.
How to choose the relevant defence or limitation
Do not write about everything you have revised.
Instead, use the facts as clues.
Fact in the scenario | Possible issue |
C is a specialist carrying out technical work | s2(3)(b), skilled visitor |
Danger arises directly from C's specialist work | s2(3)(b) |
Defect was created by outside contractor | s2(4)(b) |
Occupier checked qualifications and selected an expert | Contractor competence |
Occupier could easily inspect completed work | Contractor inspection requirement |
D communicated information about a danger | s2(4)(a), warning |
Danger is completely obvious | Possible absence of duty to warn |
C knowingly and freely accepts the particular danger | Volenti |
C acts carelessly and contributes to injury | Contributory negligence |
Selection is one of the most important problem-solving skills.
A complete OLA 1957 defence method
When advising an occupier, use this sequence.
Step 1: Establish the underlying duty
Briefly identify:
occupier
premises
lawful visitor
common duty under ss2(1) and 2(2).
If the question tells you liability or breach is already established, do not repeat unnecessary material.
Step 2: Identify the precise factual issue
Is the case about:
skilled work?
contractor work?
a warning?
an obvious danger?
voluntary risk?
claimant carelessness?
Step 3: Explain the relevant rule
Give the statutory provision and an appropriate authority.
Step 4: Apply every requirement
Do not simply identify a defence by name.
Step 5: Explain the effect
State whether:
D avoids liability
the duty is discharged
D remains liable
damages may merely be reduced.
Step 6: Reach a supported conclusion
Use language such as:
“D is likely/unlikely to rely successfully on s2(4)(b) because…”
This makes the legal reasoning explicit.
Worked example 1: skilled visitor
Jack owns premises and hires Eve, a specialist cleaner, to undertake cleaning which involves specialist chemicals. Eve suffers chemical burns from a risk directly associated with the specialist work.
This follows the type of situation assessed by OCR in 2022.
Apply the rule
Eve is on the premises in the exercise of her calling.
Under s2(3)(b), Jack is entitled to expect a visitor exercising a calling to appreciate and guard against special risks ordinarily incidental to that calling.
The chemical risk is directly connected with Eve's specialist work.
Conclusion
Jack is unlikely to be liable under the 1957 Act for that specialist risk.
Worked example 2: independent contractor
An occupier hires a contractor to carry out work. A lawful customer is later injured because the contractor performed the work negligently.
Apply all three requirements.
Was employing a contractor reasonable?
If the work required appropriate outside expertise, probably yes.
Was the contractor competent?
If the occupier made no attempt to check qualifications or competence, this requirement may fail.
Was inspection appropriate?
If a simple check could have revealed the defect, failure to inspect may also prevent reliance on s2(4)(b).
Conclusion
Even though it was reasonable to employ a contractor, the occupier may remain liable because the additional statutory requirements were not satisfied.
This mirrors the reasoning used by OCR in the 2022 assessment.
Worked example 3: warning
A lawful visitor approaches a dangerous part of premises. The occupier has provided information about the danger.
Do not automatically conclude:
“There is a warning, so D is safe.”
Apply s2(4)(a).
Ask whether the warning was sufficiently clear and effective to make C reasonably safe.
If not, the warning does not discharge the occupier's duty.
OCR's 2025 examiner report stresses that warnings must be judged by their effectiveness, rather than treated as absolute.
Worked example 4: obvious risk
An adult lawful visitor encounters a danger which is immediately apparent.
There may be no duty to warn of an obvious risk.
The relevant analysis is not:
“D forgot to put up a sign, so D is liable.”
Instead:
If the danger was already obvious to a reasonable adult visitor, the absence of an additional warning may not establish liability.
This reflects the approach identified by OCR through Staples and Darby.
Worked example 5: contributory negligence
Assume an occupier has breached the common duty, but the lawful visitor also ignores a reasonable safety measure and this contributes to the injuries.
The occupier may raise contributory negligence.
The correct conclusion is not:
“D is no longer liable.”
Instead:
C's contribution may justify a reduction in damages under the Law Reform (Contributory Negligence) Act 1945.
Worked example 6: volenti
Assume C understands a specific danger, has a genuine choice and freely accepts that risk before suffering injury from it.
D may argue volenti under s2(5).
If C genuinely consented to the relevant risk, the defence may defeat the claim.
If C:
did not know the risk
did not accept it
had no genuine choice
then volenti is unlikely to succeed.
Warnings, volenti and contributory negligence must be distinguished
These three rules can easily become confused.
Warning
Focuses mainly on what D communicated and whether this was enough to make C reasonably safe.
Volenti
Focuses on whether C voluntarily accepted the relevant risk.
Contributory negligence
Focuses on whether C's own carelessness contributed to the injury.
One set of facts may potentially raise more than one issue, but each has its own legal requirements and effect.
Independent contractors are not an automatic escape route
One of the easiest examination mistakes is:
“A contractor did it, therefore the occupier is not liable.”
OCR requires much more.
The occupier must consider:
reasonable employment + competence + appropriate inspection
If any important requirement is missing, the occupier may remain liable.
This is why factual details such as:
qualifications
references
complexity of the work
ability to inspect
can be highly significant in a scenario.
Skilled visitors are expected to protect themselves only against relevant specialist risks
Similarly, do not write:
“C is a professional so the occupier owes no duty.”
The correct principle is narrower.
Under s2(3)(b), the occupier can expect a visitor exercising a calling to guard against special risks ordinarily incidental to that calling.
A professional visitor may still be protected from unrelated dangers on the premises.
Warnings are one of OCR's biggest traps ⚠️
The 2025 examiner report singled out warnings as a common misconception.
Many candidates wrongly claimed:
“The Occupiers’ Liability Act 1957 requires occupiers to provide warning signs.”
OCR states clearly that there is no such general requirement. Section 2(4)(a) instead concerns the effect of a warning if one has been provided. It discharges the duty only to the extent that it is effective.
Memorise the distinction:
No universal duty to warn. If a warning is given, ask whether it is sufficient.
That sentence can save a lot of lost marks.
Linking this lesson to the rest of occupiers’ liability
This lesson concerns lawful visitors under the 1957 Act.
The next stage is liability towards people without lawful visitor status [Lesson 123. Occupiers’ Liability Act 1984].
That Act has its own approach to:
when a duty arises
the standard owed
ways in which the occupier may limit liability.
Its defences are covered separately in defences for trespasser claims [Lesson 124. Defences under the 1984 Act].
Do not transfer a section of the 1957 Act into a 1984 Act question.
You will later bring both Acts together in evaluating the occupiers’ liability rules [Lesson 125. Evaluating occupiers’ liability].
Key Words 🔑
Key word | Student-friendly definition | How it may be used in an exam |
Skilled visitor | A lawful visitor exercising a trade or calling who may be expected to guard against specialist risks ordinarily connected with that work. | Applied under s2(3)(b). |
Independent contractor | A separate person or business employed to carry out work on the premises. | Used when applying s2(4)(b) to defective contractor work. |
Warning | Information about a danger which may discharge the occupier's duty if it is sufficiently effective to keep the visitor reasonably safe. | Applied under s2(4)(a). |
Volenti non fit injuria | A defence based on C willingly accepting the relevant risk. | Applied under s2(5) where knowledge and voluntary acceptance are established. |
Contributory negligence | A partial defence where C's own conduct contributed to the harm. | Used to reduce damages rather than automatically defeat the claim. |
Hints from the Examiner Reports 💡
Examiner hint: Understand the effect of each rule. OCR's 2025 report specifically identified misunderstandings relating to warnings, skilled visitors and independent contractors and how they limit an occupier's liability.
Do not just memorise section numbers and case names.
Examiner hint: There is no general statutory requirement to provide a warning. Section 2(4)(a) concerns whether a warning which has been given is effective enough to discharge the duty.
This is one of OCR's clearest recent warnings to students.
Examiner hint: Do not introduce these rules when the facts do not support them. In 2024, candidates wasted time discussing skilled visitors and independent contractors in a child-visitor problem where neither issue was relevant.
Use the factual scaffolding.
Examiner hint: Apply the whole independent-contractor test. OCR's 2022 mark scheme required candidates to consider whether hiring the contractor was reasonable, whether competence had been checked and whether reasonable inspection had taken place.
Examiner hint: Legal application must be based on law rather than common-sense narrative. OCR repeatedly rewards answers which explain the legal principle, connect it to the facts and reach a reasoned outcome.
Common Mistakes ⚠️
Mistake: Calling everything a defence
Why this is inaccurate: Rules on skilled visitors, contractors and warnings often operate by limiting or discharging the occupier's duty rather than functioning exactly like traditional defences.
How to improve: Explain how the particular rule changes liability rather than relying on the label alone.
Mistake: Assuming every professional visitor must protect themselves
Why this is incorrect: Section 2(3)(b) is limited to special risks ordinarily incidental to C's calling.
How to improve: Connect the specific danger to C's specialist work.
Mistake: Assuming a contractor automatically removes the occupier's liability
Why this is incorrect: Section 2(4)(b) contains requirements relating to the decision to employ the contractor, competence and appropriate inspection.
How to improve: Apply all three.
Mistake: Forgetting to check contractor competence
Why this is incorrect: OCR expressly treats reasonable checks of competence as part of the rule.
How to improve: Look for facts about qualifications, reputation or other checks made by D.
Mistake: Saying the occupier must always inspect contractor work
Why this is incorrect: OCR describes inspection as required where appropriate.
How to improve: Consider whether the work could reasonably be checked by the occupier or required specialist expertise.
Mistake: Saying a warning always prevents liability
Why this is incorrect: A warning only discharges the duty if it is sufficient to make C reasonably safe.
How to improve: Apply the effectiveness of the warning under s2(4)(a).
Mistake: Saying the 1957 Act always requires warning signs
Why this is incorrect: OCR's 2025 examiner report expressly identifies this as a misconception.
How to improve: Remember:
No universal duty to warn. An existing warning must be effective.
Mistake: Ignoring obvious danger
Why this is incorrect: The courts may find that an occupier has no duty to warn an adult visitor about an obvious danger.
How to improve: Consider whether the visitor could reasonably appreciate the danger without an additional warning.
Mistake: Treating knowledge of risk as automatic volenti
Why this is incorrect: Knowledge and voluntary acceptance are not the same thing.
How to improve: Ask whether C genuinely and freely accepted the specific risk.
Mistake: Treating volenti and contributory negligence as identical
Why this is incorrect: Their requirements and effects are different.
How to improve: Remember:
Volenti = acceptance of risk, potentially complete defence
Contributory negligence = contribution to harm, reduction in damages
Mistake: Writing every defence in every problem
Why this is incorrect: OCR examiner reports repeatedly criticise irrelevant material.
How to improve: Use the facts to identify the one or two issues which genuinely arise.
Exam-Style Questions ✍️
Question 1
Explain the rule relating to a visitor exercising a trade or calling under s2(3)(b) of the Occupiers’ Liability Act 1957. (4 marks)
Question 2
Explain why the existence of a warning does not automatically remove an occupier's liability. (4 marks)
Question 3
Explain the requirements an occupier must satisfy when seeking to rely on the independent-contractor rule in s2(4)(b). (6 marks)
Question 4
Distinguish volenti non fit injuria from contributory negligence. (4 marks)
Question 5
Ruby is a specialist industrial cleaner. She enters a factory under a contract to remove a specialist chemical substance. She suffers chemical burns from a risk ordinarily associated with the chemicals she has been employed to handle.
Advise the occupier whether s2(3)(b) may limit its liability. (5 marks)
Question 6
A hotel hires an independent contractor to install lighting. It was reasonable to employ a specialist, but the hotel makes no attempt to check the contractor's qualifications. After installation, one fitting is visibly loose. The hotel makes no inspection and a lawful visitor is later injured when it falls.
Advise whether the hotel can rely on s2(4)(b). (8 marks)
Question 7
An occupier knows that part of a visitor route contains a concealed danger. A small notice some distance away simply says “Be careful”. A lawful visitor is injured by the danger.
Advise whether the occupier is likely to have discharged the duty through the warning. (6 marks)
Question 8
Greenway Adventure Centre has already been found to owe and breach its common duty of care towards adult visitor Maya.
The centre argues:
Maya knew that one activity involved some danger.
Maya ignored safety instructions and this contributed to her injuries.
A defective platform involved in a separate part of her injury had been installed by an outside contractor.
Greenway had checked that the contractor was suitably qualified, but did not inspect the completed work even though the defect was clearly visible.
Advise Greenway Adventure Centre whether any relevant rules or defences under the Occupiers’ Liability Act 1957 may limit its liability. (20 marks)
Answers and mark scheme
Question 1
4 marks
Award credit for:
identifying s2(3)(b) (1)
it concerns a visitor entering in the exercise of a trade or calling (1)
the occupier may expect that visitor to appreciate and guard against special risks ordinarily incidental to that calling (1)
relevant authority may include Roles v Nathan or Ogwo v Taylor (1)
Question 2
4 marks
Award credit for:
identifying s2(4)(a) (1)
there is no universal rule requiring every danger to be accompanied by a warning (1)
where a warning is given, the question is whether it is sufficiently effective to make C reasonably safe (1)
therefore, the mere existence of a notice or other warning does not automatically discharge D's duty (1)
Relevant authority may include Rae v Mars or Roles v Nathan.
Question 3
6 marks
Award credit for:
identifying s2(4)(b) (1)
the injury must arise from work entrusted to an independent contractor (1)
it must have been reasonable to entrust the work to the contractor (1)
D must have taken reasonable steps concerning the contractor's competence (1)
reasonable inspection of the work must have occurred where appropriate (1)
suitable authority, such as Haseldine v Daw, Bottomley v Todmorden Cricket Club or Woodward v Mayor of Hastings (1)
Question 4
4 marks
Award credit for:
volenti concerns C knowingly and voluntarily accepting the relevant risk (1)
it can operate as a complete defence (1)
contributory negligence concerns C's own conduct contributing to the harm (1)
contributory negligence is partial and may reduce damages rather than defeating the claim (1)
Question 5
5 marks
Award credit for:
identifying Ruby as a visitor exercising a calling (1)
identifying s2(3)(b) (1)
an occupier may expect a skilled visitor to appreciate and guard against specialist risks ordinarily incident to that work (1)
the chemical-burn danger is stated to arise from the specialist chemical work Ruby was employed to perform (1)
the occupier is therefore likely to be able to rely on s2(3)(b) in relation to that specialist risk (1)
Question 6
8 marks
A strong response should explain:
s2(4)(b) governs defective work carried out by an independent contractor (1)
the first requirement is satisfied because it was reasonable to employ a specialist contractor (1)
D must also take reasonable precautions concerning competence (1)
the hotel made no attempt to check the contractor's qualifications, which weighs against D (1)
inspection must also be considered where appropriate (1)
the loose fitting was visibly defective, suggesting that inspection did not require specialist expertise (1)
the hotel made no inspection (1)
the hotel is therefore unlikely to satisfy s2(4)(b) and is likely to remain liable (1)
Question 7
6 marks
Award credit for:
identifying s2(4)(a) (1)
the existence of a warning does not automatically discharge D's duty (1)
the warning must be sufficient to make the visitor reasonably safe (1)
the notice is some distance from the concealed danger (1)
the wording “Be careful” may fail to identify the particular risk sufficiently (1)
D is therefore unlikely to have discharged the common duty through this warning (1)
Credit a different conclusion where convincingly supported by the facts and correct legal principles.
Question 8
20 marks
A strong answer should identify and distinguish the relevant issues rather than treating them all as the same defence.
Volenti
Section 2(5) recognises volenti non fit injuria.
D must show that Maya knowingly and voluntarily accepted the relevant risk.
Merely knowing that an activity involved some danger does not automatically establish voluntary acceptance of the particular risk which caused her injury.
On the stated facts, more evidence of genuine acceptance would be required.
Greenway may therefore struggle to establish volenti.
Contributory negligence
Contributory negligence is a partial defence under the Law Reform (Contributory Negligence) Act 1945.
Maya ignored safety instructions.
The facts expressly state that this conduct contributed to her injuries.
Contributory negligence is therefore likely to be relevant.
Its effect would be a reduction in damages rather than automatically defeating Maya's claim.
Independent contractor
Section 2(4)(b) may relieve an occupier of liability for defective contractor work.
Greenway must establish that it was reasonable to entrust the work to the contractor.
It must have taken reasonable steps to ensure the contractor was competent.
Greenway checked that the contractor was suitably qualified, which supports this requirement.
Greenway must also consider reasonable inspection where appropriate.
The defect was clearly visible, so inspection appears to have been practical and not dependent on specialist knowledge.
Greenway carried out no inspection.
It is therefore unlikely to satisfy all the requirements of s2(4)(b).
Overall conclusion
Greenway is unlikely to escape liability entirely.
Its strongest argument is likely to be contributory negligence, because Maya's own conduct is stated to have contributed to the injuries and this may reduce her damages.
Volenti is less certain because knowledge of general danger does not itself establish voluntary acceptance of the relevant risk.
Greenway is also unlikely to rely successfully on s2(4)(b) concerning the defective platform because, despite choosing a qualified contractor, it failed to inspect an obvious defect when inspection was appropriate.
A high-level response should explain each legal rule, connect it directly to the relevant facts and clearly distinguish between a rule which may remove liability and one which merely reduces the claimant's damages.
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