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Occupiers' liability — SQE1 Tort question

A worked single-best-answer question on occupiers' liability, with why each wrong option is wrong — the way SQE1 traps candidates.

Occupiers' liability

Marlowe Borough Council occupies a public park with a children's play area. A wooden climbing frame there has been rotting for months, and park staff had reported that several rungs were loose. Kiri, aged 9, who was lawfully in the park, climbed the frame to reach a brightly painted platform at the top. A rung gave way and she fell and broke her arm. The council argues that a sensible adult would have tested the rungs before using them.

Which of the following best describes the council's liability under the Occupiers' Liability Act 1957?

  1. AIt is not liable, because the standard of care is that owed to a reasonable adult visitor, who would have noticed the danger.
  2. BIt is not liable, because Kiri's parents were responsible for her safety and should have accompanied her.
  3. CIt is likely to be liable, because an occupier must be prepared for children to be less careful than adults, and the frame was an obvious attraction to them.
  4. DIt is not liable, because the frame was a recreational facility and Kiri voluntarily accepted the risks of climbing.
  5. EIt is liable only under the Occupiers' Liability Act 1984, because children are not lawful visitors to play equipment.
Show answer and reasoning
C is the best answer. An occupier owes visitors the common duty of care under the Occupiers' Liability Act 1957, s 2(2). By s 2(3)(a) an occupier must be prepared for children to be less careful than adults. The council knew of the rotting rungs on equipment intended to attract children, and Kiri, at 9, used it in the expected way, so the council is likely to be in breach.

Rule: Under the OLA 1957, an occupier must be prepared for children to be less careful than adults.

  • A Section 2(3)(a) requires the occupier to allow for children being less careful than adults. (wrong rule)
  • B The principle that occupiers may rely on parents (Phipps v Rochester) concerns very young children and hidden dangers, not a 9-year-old using play equipment as intended. (right rule, wrong facts)
  • D Kiri did not willingly accept a risk of rotten rungs she did not know about, and using play equipment is precisely its intended use. (right rule, wrong facts)
  • E Kiri was a lawful visitor to the park, so the 1957 Act governs, not the 1984 Act. (right rule, wrong facts)

Source: Occupiers' Liability Act 1957, s 2(2) and (3)(a); Glasgow Corporation v Taylor [1922] 1 AC 44

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