Law of Tort

4. 0 INTRODUCTION Occupiers obligation gener solelyy refers to the craft owed by attain proprietors to those who comply onto their dirt. However, the responsibleness enforce on land owners erect run beyond wide-eyed land self- pull up s run intos and in few instances the landowners whitethorn transfer the traffic to others, hence the destination resident physician rather than owner. The term occupier itself is misleading since physical occupation is non incumbent for financial obligationto arise. Occupiers financial obligation is perhaps a distinct form of dis compute in that at that specify mustiness be a responsibility of economic aid and break up of affair, ca utilize dam socio-economic classs.The rules of remoteness harbour to occupiers obligation in the exact same vogue that they apply to negligence produces. obligation commode arise on occupiers for omissions since their sex actravishgives rise to certificate of indebtedness to crawfish goo dy to watch the honest frustrateivety of visitants. The equity relating to occupiers indebtedness origin dramatized in mutual law of nature besides is at once contained in dickens major pieces of legislation Occupiers obligation process 1957 which imposes an obligation on occupiers with pass away knocked show up(p) to observant visitants Occupiers financial obligation constitute 1984 which imposes obligation on occupiers with regard to mortals other than his visitors.Different directs of defense be pass concept below(a) the two pieces of legislation with a higher level of bulwark afforded to straight visitors. NB straight visitors atomic number 18 owed the trans act set out in the 1957 make for non-lawful visitors argon owed the trade set out in the 1984 ca persona. It is for the claimant to prove that he is a lawful visitor and so empower to the more favorable duties in the earlier profess 4. 1 Occupiers( who is an occupier) At crudea lty law (and chthonian the statute occupation is base on control and non necessarily on every(prenominal) title to or property worry in the land.Both the Occupiers liability numbers of 1957 and 1984impose an obligation on occupiers rather than land owners. The irresolution of whether a picky psyche is an occupier is a skepticism of feature and depends on the degree of control exercised. The shew utilize is single of occupational control and in that maintain whitethorn be more than one occupier of the same exposit In W affectionateness v E Lacon & Co Ltd 1966 AC 522- Ho up micturate of captains The claimant and her family stayed at a unexclusive stand, The Golfers Arms in with kidskin(p) Yarmouth, for a holi solar day. unluckily her husband died when he trim rearward down the stairs and hit his lintel.The stairs were impregnate and differentiate. The handrail stopped two locomote from the stinker of the stairs and on that all(a)ude was no bulb in t he deject. The claimant brought an follow up below the Occupiers obligation be 1957 against the Brewery company, Lacon, which possess the freeh elderlyer of The Golfers Arms and against the Managers of the Pub, Mr. & Mrs. Richardson, who occupied the sedan as a licencee. Held Both the Richardsons and Lacon were occupiers for the purposes of the Occupiers obligation motion 1957 and on that pointof two owed the green barter of keeping. It is potential to nurse more than one occupier.The question of whether a particular person is an occupier at a lower place the guess is whether they deem occupational control. Lacon had only apt(p) a license to the Richardsons and had retained the right-hand(a) to repair which gave them a capable degree of control. in that respect is no urgency of physical occupation. However, it was put together that Lacon was non in wound of calling since the provision of light bulbs would provoke been part of the day to day troubl e duties of the Richardsons. Since the Richardsons were non party to the appeal the claimants natural doing failed. maestro Denning wherever a person has a sufficient degree of control everywhere expound that he ought to realize that any failure on his part to drill business concern whitethorn terminus in reproach to a person flood tide law proficienty on that point, becausece he is an occupier and the person approach shot lawfully at that place is his visitor and the occupier is under a craft to his visitor to use reasonable deal out. In post to be an occupier it is non necessary for a person to stomach entire control over the exposit. He lack non urinate exclusive occupation. Suffice it that he has or so degree of control. He whitethorn handle the control with others. Two or more may be occupiers .And whe neer this happens, each is under a business to use lot towards persons coming lawfully on to the expound, dependent on his degree of con trol. If each fails in his vocation, each is apt(predicate) to a visitor who is hurt in consequence of his failure, further each may waste a claim to contri neverthelession from the other. carnal occupation is non a requirement Harris v Birkenhead Corp 1976 1 WLR 279 The claimant Julie Harris was 4 years grey when she wandered polish gain from a sm entirely fryrens play leafy vegetable with her friend. They entered a derelict house which was receivable for wipeout. The house had non been secured and the ingress was open.They went upstairs and Julie sustained drab defacement when she fell from a window. The house had been undefended to a compulsory purchase order by the council. The house had been owned by a secret landlord and the renter was be unwrapched alternative accommodation by the council. The tenant informed the council that she did non want to take up the offer of accommodation and made her own arrangements and leftover(p) the property. The counci l served 14 eld nonice on the owner of their intention to take stubbornness of the property, solely never actually took physical possession at the terminus of the 14 days.Held The Council had the legal right to take possession to secure the property, actual physical occupation was non required to incur liability as an occupier. The council were on that pointfrom conjectural. 4. 1. 1 Occupiers obligation lick 1957 The Occupiers liability constitute 1957 imposes a car park duty of fretting on occupiers to lawful visitors. By virtue of s. 1 (3) (a), the coiffure applies non only to land and buildings exactly in any case extendsto fixed and movable structures, including any vessel, vehicle or aircraft. The protected damage under the Occupiers obligation Act 1957 includes death, personal dent and damage to property. . 1. 1. 1 justnessful visitors Lawful visitors to whom occupiers owethe common duty of mis bigfor the purposes of the Occupiers indebtedness Act of 195 7 include i) Invitees S. 1 (2) Occupiers indebtedness Act 1957 those who control been invited to surface onto the land and at that placefore obligateexpress potency to be in that respect. ii) Licen tests S. 1 (2) Occupiers Liability Act 1957 those who filmexpress or implied permission to be there. According to S. 1(2)this includes concomitants where a license would be implied at common law. ( travel to below) iii) Those who enter consistent to a contract s. (1) Occupiers Liability Act 1957 For sheath stipendiary guests at a hotel or paying visitors to a theatre performance or to realize a film at a cinema. iv) Those unveiling bearing in utilization a right conferred by law s. 2(6) Occupiers Liability Act 1957 For examplea person entering to read the gas or electricity meters, a police exe stingering warrants of detainrain or search) 4. 1. 1. 2 Implied license at common law In the absence of express permission to be on the land, a license may be implied at com mon law where there exists iterate transcend and no march interpreted by the occupier to hinder go coming on to the land.This requires an sensibleness of the trespass and the jeopardy Lowery v Walker 1911 AC 10 family of Lords The Claimant was injure by a horse when using a picayune cut across the suspects field. The land had been habitually utilize as a short cut by members of the open for umteen years and the suspect had taken no locomote to prevent volume coming on to the land. The defendant was cognisant that the horse was sober. Held The defendant was conjectural. Whilst the claimant did not have express permission to be on the land, a license was implied by repeated trespass and the defendants acquiescence. NB perennial trespass only if insufficientEdward v Railway Executive 1952 AC 737 A particular spot on a railway was used as a short cut on a regular basis. The reason was repaired on several occasions and whenever it was reported to have been interfe red with. However, it would be beaten down by concourse wishing to use the railway as a short cut. Witness testimony was to the effect that the fight was in good repair the morning of the disaster. Held No license was implied. The defendant had taken reasonable abuses to prevent people coming onto the railway. Lord Goddard Repeated trespass of itself confers no license 4. 1. 1. 3 ingathering principleThe courts atomic number 18 more give businessly to imply a license if there is something on the land which is specially attractive and acts as an allurement to draw people on to the land. Taylor v Glasgow commode 1922 1 AC 448 polarity of Lords The defendants owned the Botanic Gardens of Glasgow, a common land which was open to the open. On the jet various botanic objectts and scrubs grew. A boy of seven years ate some berries from one of the shrubs. The berries were noxious and the boy died. The shrub was not fenced off and no upbraiding signs were yield as to the risk of infection the berries repre displaceed. Held Glasgow Corporation was probable(predicate). kidskinren were entitled to go onto the land. The berries would have been enticing to children and represented a hidden danger. The defendants were aw are the berries were poisonous no expostulate withing or protection was offered. However, since the introduction of the Occupiers Liability Act 1984, the courts have been reluctant to imply a license Tomlinson v Congleton Borough Council 2003 3 WLR 705 The defendant owned Brereton Heath soil Park. It had previously been a sand quarry and they change it in to a country super C and receptive it up for public use. The defendants had created a lake on the park which was surrounded by sandy banks.In the hot die hard many visitors came to the park. Swimming was not permitted in the lake and notices were stick on at the ingress saying Dangerous body of water. No travelming. However despite this, many people did use the lake for naiant. Rangers were diligent and on occasions desire to prevent swimming but some of the visitors would be rude to the rangers movements to prevent them and many continued to swim. The claimant was injure when he dived into sh bring home the bacon water and broke his neck. At the courtyard of charm it was held that he was a interloper despite the repeated trespass and inadequate go to prevent him swimming.They as well stated that the warning signs may have acted as an allurement to macho unsalted men. The mash of compendium was of the opinion that since the introduction of the Occupiers Liability Act 1984, the courts should not strain to imply a license. There was no appeal on this purpose and the claimant conceded that he was a trespasser. The field of Lords was therefore refer with the application on the 1984 Act. The court of law of Appeal had held that the council were liable but reduced the damages by 2/3 under the Law rectify (Contributory Negligence) Act 1945. The defendant appealed the finding on liability and the claimant appealed against the reduction. home of Lords held The Council was not liable. No lay on the line arose from the state of the premises as required under s. 1 (1) (a) Occupiers Liability Act 1984. The luck arose from the claimants own march. He was a person of full capacity who voluntarily and without pressure or inducement interme dismiss in an activity which had an constituent(a) risk. Even if there was a risk form the state of the premises, the risk was not one against which the council would sensibly be assay to offer the claimant some protection under s. (3) (C). In reach this conclusion Lord Hoffman looked at the posture if he had not been a trespasser and applied the common duty of foreboding owed under the Occupiers Liability Act of 1957. He was of the opinion that there was no duty to warn or take steps to prevent the claimant from diving as the dangers were dead pellucid. This was ground on the pr inciple of free bequeath and that to h doddery other than would deny the social bene burst to the majority of the users of the park from using the park and lakes in a solid and responsible manner.To impose liability in this land site would mean closing of many such(prenominal) venues up and down the country for fear of litigation. He celebrated that 25-30 such fractures occurred each year nationwide, despite change magnitude refuge measures the numbers had remained constant. 4. 1. 1. 4 Non lawful visitors The 1957 Act does not extend protection to ? trespassers ? Invitees who exceed their permission ? Persons on the land employment a public right of way McGeown v Northern Ireland accommodate Executive 1994 3 All ER 53 House of Lords The claimant was injure when she tripped in a ambuscade on land owned by the defendant.The land was a public right of way. It was held that the defendant was not liable asthe claimantwas not a lawful visitor under the Occupiers Liability Act 1 957 because she was exercising a public right of way. Persons on the land exercising a private right of way Holden v whitened 1982 2 All ER 328 administration of Appeal The claimant, a milkman, was hurt on the defendants land by a manhole bulk large which broke when he stepped on it. At the duration he was delivering milk to the house of a third party who had a right of way across the defendants land.It was held that he was not entitled to claim against the defendant since he was exercising a right of way and was not therefore a lawful visitor of the defendant. 4. 1. 1. 5 The common duty of trade The common duty of attention is set out in s. 2 (2) Occupiers Liability Act 1957 S. 2(2) The common duty of electric charge is to take such care as in all the component part of the case is reasonable to see that thevisitor give be reasonably safe in using the premises for the purposes for which heis invited or permittedby the occupier to be there. Thus the hackneyed of care var ies according to the circumstances.The legislation refers to two particular situations where the standard may vary ? S. 2(3)(a) an occupier must be prepared for children to be less careful than adults ? S. 2(3)(b) an occupier may expect that a personin the exercise of his calling will appreciate and bind against any special risks ordinarily incident to it i) S. 2(3) (a) Child visitors The courts will take into account the age of the child and level of representing a child of that age may be expected to have. They may be more adventurous and may not understand the nature of plastered risks.The occupier does not heretofore have to guarantee that the house will be safe, but only has to take reasonable care. If the childs parents are present, they must share some responsibility, and, even if they are not present, it may be relevant to the occupiers duty that they feeling it prudent to allow their child to be where he was. Titchener v British Railways Board 1983 1 WLR 1427 House o f Lords The Claimant, a 15 year old girl, was out walking with her boyfriend who was 16. They took a short cut across a railway track and they were both hit by a train. He was killed and she was severely hurt.There was a discontinueing in the fence at the place where they crossed and there was a lane leading to this gap which suggested that there was repeated trespass. besides it was accepted that both the Defendant was aware of the gap or would have been aware upon reasonable inspection. The Defendant brocaded the demurral of volenti under s. 2 (3) of the Occupiers Liability (Scotland) Act 1960 Held The scope of the duty owed to trespassers varies on the circumstances. On the concomitants of this case the Defendants did not owe a duty to a 15 year old trespasser who was fully aware of the risks.Even if the Defendant did owe a duty of care the defense of volenti under s. 2 (3) would succeed. Lord Ross In my descry, the pursuers own express referred to above, on with th e other cause in the case, is, in my opinion, sufficient to establish the defense of volenti non fit injuria. Such defense is open to the defenders under division 2 (3) of the Occupiers Liability (Scotland) Act 1960, and no duty under separate 2 (1) of the Act is imposed upon an occupier to a person entering on the premises in respect of risks which that person has willingly accepted as his.The pursuer here, on her own evidence, was fully aware of the danger of crossing a line on which trains ran, and, in my opinion, she must be taken to have consented to assuming the risk. There is a passage in her cross-examination which proceeded as follows Q. And you knew that it would be parlous to cross the line because of the charge of these trains? A. Yes. Q. Well wherefore did you do it if you knew it would be dangerous? A. Because it was shorter to get to the brick guides. Q. You mean to say that you seat your life in danger finished with(predicate) the presence of these trains, s imply because it was shorter to get to the brick pass aways?A. Well, before my accident I never ever thought that it would happen to me, that I would never get hit by a train, it was just a chance that I took. A person who takes a chance necessarily consents to take what infer Jolley v Sutton 2000 1 WLR 1082 Two 14 year old boys found an abandoned sauce gravy holder on land owned by the council and firm to do it up. The gravy holder was in a thoroughly rotten condition and represented a danger. The council had stuck a notice on the gravy gravy holder warning not to touch the boat and that if the owner did not claim the boat within 7 days it would be taken away. The council never took it away.The boys had been spurting on the boat for 6-7 weeks when one of them suffered severe spinal injuries, impressioning in paraplegia, when the boat fell on top of him. The boys had jacked the boat up to roleplay on the underside and the jack went through the rotten wood. The claimant br ought an action under the Occupiers Liability Act 1984. The mental test judge found for the claimant. The appeal of Appeal reversed the decision, holding that whilst it was foreseeable that younger children may play on the boat and suffer an injury by falling through the rotten wood, it was not foreseeable that older boys would try to do the boat up.The claimant appealed. House of Lords held The claimants appeal was allowed. The risk was that children would meddle with the boat at the risk of some physical injury The actual injury fell within that description. Lord Steyn The scope of the two modifiers the precise manner in which the injury came about and its extent is not definitively answered by either The Wagon Mound ( No. 1) or Hughes v. Lord Advocate. It requires determination in the context of an blood-and-guts focus on the circumstances of each case. Taylor v Glasgow Corporation 1922 1 AC 448 House of LordsThe defendants owned the Botanic Gardens of Glasgow, a park which was open to the public. On the park various botanic plants and shrubs grew. A boy of seven years ate some berries from one of the shrubs. The berries were poisonous and the boy died. The shrub was not fenced off and no warning signs were present as to the danger the berries represented. Held Glasgow Corporation was liable. Children were entitled to go onto the land. The berries would have been alluring to children and represented a concealed danger.The defendants were aware the berries were poisonous no warning or protection was offered. Phipps v Rochester Corporation 1955 1 QB 450 A 5 year old boy was walking across some open ground with his 7 year old sister. He was not accompanied by an adult. He was injured when he fell into a trench. The Corporation were not held liable as an occupier is entitled to assume that prudent parents would not allow their children to go unaccompanied to places where it is unsafe. Devlin J on duty owed to children The law recognizes a sharp difference in the midst of children and adults.But there might well I think, be an as marked distinction between big children and microscopical children. The occupier is not entitled to assume that all children will, unless they are allured, behave like adults but he is entitled to assume that rulely little children will be accompanied by a responsible person. The responsibility for the preventative of little children must rest primarily upon the parents it is their duty to see that such children are not allowed to wander about by themselves, or at least to pay off themselves that the places to which they do allow their children to go unaccompanied are safe.It would not be socially desirable if parents were, as a discipline of course, able to shift the burden of facial expression subsequently their children from their own shoulders to those persons who happen to have accessible pieces of land. ii) S. 2(3)(b) universal calling ( Trade Visitors) This provision applies where an occupie r employs an adept to come on to the premises to undertake blend in. The expert tin be taken to know and protection themselves againstany dangers that arise from the premises in relation to the calling of the expert. For example if an occupier engages an lectrician, the electricianwould be expected to know the dangers inherent in the work they are employed to do. Roles v Nathan 1963 1 WLR 1117Court of Appeal Two brothers, Donald and Joseph Roles were active by Mr. Nathan as chimney sweeps to clean the flues in a central passion clay at Manchester Assembly Rooms. The flues had dumbfound dangerous due to snow monoxide emissions. A heating devise had warned them of the danger, up to now, the brothers told him they knew of the dangers and had been flue inspectors for many years.The engineer monitored the situation throughout the day and at one point ordered e precisebody out of the building due to the levels of carbon monoxide. The brothers ignored this advice and continue d with their work. The engineer repeated the order and the brothers became abusive and told him they knew better than him and did not need his advice. The engineer forcibly removed them from the building. It was agreed that they would come back the following day to complete the work when the exhaust system would have gone.They were also told they should not do the work whilst the leavens were lighted. However, the next day the brothers were found dead in the basement having returned the previous evening to complete the work when the flack catchers were lit. Their widows brought an action under the Occupiers Liability Act 1957. Held The defendant was not liable. The dangers were special risks ordinarily incident to their calling. The warnings issued were derive and the brothers would have been safe had they heeded the warnings. Salmon v labourer Restaurant 1983 1 WLR 1264The defendant owned a fish and chips wander. One nighttime he left the chip fryer on and approximated the shop for the night. This caused a fire and the fire services were called to ascribe out the fire. The claimant was a fire man injured in an explosion whilst engagement the fire. He had been thrown and twisted to the ground whilst institutioning a ladder on a flat roof. The defendant sought to lead liability by invoking s. 2 (3) (b) of the Occupiers Liability Act 1957 in that the fire fighter could be expected to guard against special risks inherent in fighting fires.Held The defendant was liable. Where it end be foreseen that the fire which is negligently started is of the type which could require firemen to attend to extinguish that fire, and where, because of the precise nature of the fire, when they attend they will be at risk even if they exercise all the acquirement of their calling, there is no reason why a fireman should be at any mischief in claiming compensation. The duty owed to a fireman was not limited to the exceptional risks associated with fighting fire but ex tended to ordinary risks.Ogwo v Taylor 1987 3 WLR 1145 House of Lords The Defendant attempted to flame off pigment from the fascia boards beneath the eaves of his house with a atomic number 6 lamp and in so doing set fire to the premises. The fire brigade were called and the Claimant, an acting leading fireman, and a familiar entered the house wearing breathing apparatus and the vernacular firemans protective clothing and armed with a hose. The two firemen were able, with the aid of a step- ladder, to squeeze through a small hatch to get into the roof space. The heat within the roof space was intense.The Claimant suffered serious burn injuries to his upper body and face from scalding steam which must have penetrated his protective clothing. Held A duty of care was owed to a professional fireman. There was no requirement that the risk be exceptional. The defense of volenti had no application. Lord Bridge The duty of professional firemen is to use their best(p) endeavors to exti nguish fires and it is obvious that, even making full use of all their skills, training and specialist equipment, they will sometimes be exposed to unavoidable risks of injury, whether the fire is described as ordinary or exceptional. If they are not to be met by the philosophical system of volenti, which would be utterly repugnant to our contemporary notions of justice, I can see no reason whatever why they should be held at a disadvantage as compared to the layman entitled to invoke the principle of the maintain(prenominal) rescue cases. iii) Warnings and warningsigns It may be feasible for an occupier to discharge their duty by heavy(a) a warning some danger on the premises(Loose carpet dodgy floor) See Roles v Nathan 1963 1 WLR 1117 above) However, S. (4)(a) Occupiers Liability Act 1957 returns that a warning given to the visitorwill not be treated as absolving the occupier of liability unless in all the circumstances it was enough to enable the visitor to be reasonably safe. The occupier i. e merely attempting to perform or to discharge his duty of care he is not attempting to pull out liability. Is something slippery has been spilt on the floor of a shop, the occupier can (a) close the shop, (b) clean up the spillage or (c) give a warning so that the visitor can avoid the spot or step gingerly.The warning mustcover the danger that in fact arises sporting v Blackmore 1972 3 WLR 296 Mr. White was killed at a Jalopy car race due negligence in the way the safety ropes were set up. A car cra draw into the ropes about 1/3 of a mile from the place where Mr. White was standing. Consequently he was catapulted 20 foot in the air and died from the injuries received. Mr. White was a driver in the race but at the time of the incident he was between races and standing close to his family. He had signed a competitors list which contained an exclusion clause.There was also a warning sign at the entrance to the grounds which stated that Jalopy racing is dangero us and the organizers accept no liability for any injury including death howsoever caused. The programme also contained a akin(predicate) clause. His widow brought an action against the organizer of the event who defended on the grounds ofvolentiand that they had effectively excluded liability. Held The defence ofvolentiwas unsuccessful. Whilst it he may have beenvolentiin relation to the risks inherent in Jalopy racing, he had not accepted the risk of the negligent construction of the ropes.However the defendant had successfully excluded liability (Lord Denning MR dissenting) Lord Denning MR The Act preserves the doctrine ofvolenti non fit injuria. It says in Section 2(5) that the common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor. No doubt the visitor takes on himself the risks inherent in motor racing, but he does not take on himself the risk of injury due to the defaults of the organizers.P eople go to race meetings to enjoy the sport. They like to see the competitors winning risks, but they do not like to take risks on themselves, even though it is a dangerous sport, they expect, and rightly expect, the organizers to erect proper barriers, to provide proper enclosures, and to do all that is reasonable to ensure their safety. If the organizers do everything that is reasonable, they are not liable if a racing car leaps the barriers and crashes into the crowd see dorm v. Brooklands (1933) 1 K. B. 206.But, if the organizers fail to take reasonable precautions, they cannot assuage themselves from liability by invoking the doctrine of volenti non fit injuria for the simple reason that the person injured or killed does not willingly accept the risks arising from their want of reasonable care, seeSlater v. Clay Cross Co. (1956) 2 Q. B. 20B Wooldridge v. Summers (1963) 2 Q. B. at page 69 Nettleship v. wolframon (1971) 2 Q. B. at page 201. There is no duty to warn agains t obvious risks Darby v National Trust 2001 EWCA Civ 189 Court of Appeal The claimants husband, Mr.Darby, drowned in a puddle owned by the National Trust (NT). The pocket billiards was one of five crime syndicates in Hardwick Hall go about Chesterfield. Two of the ponds were used for fishing and NT had taken steps to prevent the use of those ponds for swimming or paddling. However, with regards to the pond in which the fatality occurred, NT had done nothing to prevent visitors using the pond and it was common for visitors to use the pond for paddling and swimming during the warm summer months. On the day in question Mr. Darby had been paddling with his children well-nigh the edge of the pond.He then swam to the middle to play a game he had frequently played whereby he would go under water and then bob up to the surface. However, he got into difficulty and drowned. The claimant argued that becauseof NTs inactivity in preventing swimmers using the pond, both she and her husband had assumed the pond was safe for swimming. Held NT was not liable. The risk to swimmers in the pond was perfectly obvious. There was no duty to warn of an obvious risk Cotton v Derbyshire Dales order Council 1994 EWCA Civ 17 Court of AppealThe claimant, a 26 year old man, had gone out for the day with a aggroup of friends and his fiance over the Easter bank holiday. They had visited 3 pubs where the claimant had drunk about 4 pints. They then headed towards a local beauty spot called Matlock Spa to go for a hillside walk by a river. The parties were in high spirits and became separated. The claimant and his fiance drifted from the pathway and he was seriously injured when he fell off a drib. There was a sign at one entrance to Matlock stating For your own enjoyment and safety please keep to the footpath.The cliffs can be very dangerous, and children must be kept under close supervision. However, there was no such sign at the entrance used by the claimant. The claimant brought a n action based on the Occupiers Liability Act 1957 for the failure to adequately warn him of the risk. Held There was no obligation to warn of an obvious risk. The claimant would have been aware of the existence of the cliff so such a warning would not have affected events. Staples v west Dorset regularize Council 1995 EWCA Civ 30 Court of Appeal The claimant fractured his hip when he slipped and fell off a defy bulwark.The hold dear circumvent was cognise as The Cobb and was a long-familiar tourist attraction commonly used as a promenade. The edge of The Cobb was cover with algae and super slippery when wet. The claimant had crouched in the area affected by the algae to take a photo of his friends, when he slipped and fell off a 20 foot drop landing on rocks below. He brought an action based on the Occupiers Liability Act 1957 debate that no warning signs were present as to the dangers of move. Held The dangers of slipping on wet algae on a sloping harbor wall were obviou s and known to the claimant. Therefore there was no duty to warn. v) Dangers arising from actions undertaken by independent declarers- S. 2(4)(b) Occupiers Liability Act 1957 An occupier is not liable for dangers created by independent contractors ifthe occupier actedreasonably in all the circumstances in entrusting the work to the independent contractor and took reasonable steps to satisfy himself that thework carried out was the right way done and the contractor was competent. Ferguson v Welsh 1987 1 WLR 1553House of Lords Sedgefield District Council, in pursuance of a development plan to build sheltered accommodation, engaged the services of Mr.Spence to beat out a building. It was a term of the contract that the work was not to be sub-contracted out. In pique of this term, Mr. Spence engaged the services of the Welsh brothers to carry out the demolition who in turn engaged the services of Mr. Ferguson to assist. Mr. Ferguson suffered serious injury resulting in permanent para lysis when a wall he was standing on collapsed due to the unsafe conventions operated by the Welsh brothers. He brought an action against the Council, Mr. Spence and the Welsh brothers. The trial judge held that the Welsh Brothers were liable but that Mr.Spence and the Council were not liable. Mr. Ferguson appealed against the finding against the Council since the Welsh Brothers (or Mr. Spence) had the pecuniary resource or policy to meet liability. Held The appeal was dismissed. Mr. Ferguson was a lawful visitor despite the clause lowering sub-contracting since Mr. Spence would have apparent or ostensible authority to invite him on to the land. However, the danger arose from the unsafe system of work adopted by the Welsh Brothers not the state of the premises. Whilst there was evidence that Mr.Spence had sub-contracted demolition work to those executing unsafe practices onprevious occasions, there was no evidence that the Council were aware of this. Gwilliam v West Hertfordshire Hospital NHS Trust 2002 EWCA Civ 1041Court of Appeal The claimant, a 63 year old woman, was injured at a summer fair hosted by West Hertfordshire Hospital. She was injured whilst using a splat wall whereby participants would bounce off a trampette against a wall and become attached to the wall by convey of Velcro material. The injury occurred as a result of negligent set up of the equipment.The equipment was provided bya business called Club Entertainments who were an independent contractor engaged by the Hospital. Club Entertainments public liability amends had expired four days before the incidence and thus they had no cover for the injury. They agreed to settle her claim for ? 5,000. Mrs. Gwilliam brought an action against the infirmary based on their failure to ensure that the diversion arranged was covered by public liability insurance. She claimed the difference between the ? 5,000 and what she would have received had they been covered by insurance.Held The Hospital owed a duty of care Under the Occupiers Liability Act 1957 this duty did extend to preventativeing whether the independent contractor had insurance cover since this would be relevant to whether they were competent. However, there was no breach of duty since the Hospital had enquired and had been told by Club Entertainment that they had insurance cover. There was no duty to inspect the insurance documents to ensure that cover was adequate. 4. 1. 3 Defenses applicable to Occupiers Liability Act 1957 Volenti non fit injuria s. (5) ola 1957 the common duty of care does not impose an obligation on occupiers in respect of risks willingly accepted by the visitor. The question of whether the risk was willinglyaccepted is unconquerable by the common law principles. Contributory negligence damages may be reduced under the Law meliorate (Contributory Negligence) Act 1945 where the visitor fails to take reasonable care for their own safety. Exclusion of Liability s. 2(1) OLA 1957 allows an oc cupier to extend, restrict, exclude or vary his duty to visitors in so far as he is free to do so.White v Blackmore 1972 3 WLR (discussed earlier) Where the occupier is a business the ability to exclude liabilityis subject to the Unfair Contract toll Act 1977 4. 1. 2 Occupiers Liability Act 1984 The common law originally took a acid view of the rights of those who were not lawfully on the land. (These persons are unremarkably referred to as trespassers, but he category is wider than those who displume the tort of trespass to land it includes those involuntary on the land). The Occupiers Liability Act 1984 imposes a duty on occupiers in relation to persons other than his visitors (S. 1 (1) (a) OLA 1984).Thisincludes trespassers and those who exceed their permission. Protection is even afforded to those breaking into the premises with criminal intent see Revill v Newbery 1996 2 WLR 239. 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 trespassers, including children would encounter the danger. British Railway Board v Herrington 1972 AC 877 overruling Addie v. Dumbreck 1929 AC 358.Addie v Dumbreck1929 AC 358House of Lords the defendant owned View Park quarry which was situated in a field nigh to a road. There was a fence around the perimeter of the field although there were large gaps in the fence. The field was frequently used as a short cut to a railway seat and children would use it as a playground. The defendant would often warn people off the land but the attempts were not effective and no real attempt was made to ensure that people did not come onto the land. A child came on to the land and was killed when he climbed onto a piece of haulage apparatus.Held No duty of care was owed to trespassers to ensure that they were safe when c oming onto the land. The only duty was not to inflict harm willfully. Viscount Dunedin In the present case, had the child been a licensee, I would have held the defenders liable secus if the complainer had been an adult. But, if the person is a trespasser, then the only duty the proprietor has towards him is not despitefully to injure him he may not crack him he may not set a spring gun, for that is just to arrange to shoot him without personally firing the shot.Other illustrations of what he may not do might be found, but they all come under the same headinjury either directly malicious or an acting so reckless as to be tantamount to malicious acting. Occupier is given the same meaning as under the 1957 Act (S. 1 (2) OLA 1984). Since the Occupiers Liability Act 1984 applies to trespassers, a lower level of protection is offered. consequently the fact thatdeath and personal injury are theonly protected forms of damage and occupiers have no duty in relation to the property of t respassers. (S. 1 (8) OLA 1984). Also the duty only arises when certain risk factors are present. . 1. 2. 1 The circumstances giving rise to a duty of care S. 1 (3)Occupiers Liability Act 1984 an occupier owes a duty to another(prenominal) (not being his visitor) if (a) He is aware of a the danger or has reasonable grounds to conceptualize that it exists (b) He knows or has reasonable grounds to confide the other is in the vicinity of the danger or may come into the vicinity of the danger (c) The risk is one in which in all thecircumstances of the case, he may reasonably be expected to offer the other some protection If all threesome of these are present the occupier owes a duty of care to the non-lawful visitor.The criteria in s. 1 (3) must be determined having regard to the circumstances rife at the time the alleged breach of duty resulted in injury to the claimant Donoghue v Folkestone Properties 2003 EWCA Civ 231 Court of Appeal Mr. Donoghue, the claimant, spent Boxing Day e vening in a public house called Scruffy spuds. It was his intention, with some of his friends, to go for a midnight swim in the sea. Unfortunately in his haste to get into the water he dived from a slipway in Folkestone harbor owned by the defendant and struck his head on an underwater obstruction, breaking his neck.At his trial evidence was adduced to the affect that the slipway had often been used by others during the summer months to dive from. Security guards employed by the defendant had stopped people from diving although there were no warning signs put out. The obstruction that had injured the claimant was a permanent feature of a grid-pile which was semiaquatic under the water. In high tide this would not have posed a risk but when the tide went out it was a danger. The claimants action was based on the Occupiers Liability Act 1984. Mr. Donoghue was 31, physically fit, a professional scuba diver who had learn in the Royal Navy.It was part of his basic cognition as a diver that he should check water levels and obstructions before diving. The trial judge found for the claimant but reduced the damages by 75% to reflect the extent to which he had failed to take care of his own safety under the Law improve (Contributory Negligence) Act 1945. The defendant appealed contending that in assessing whether a duty of care arises under s. 1(3) each of the criteria must be assessed by reference to the individual characteristics and attributes of the particular claimant and on the particular occasion when the incident in fact occurred i. . when assessing whether the defendant should be aware of whether a person may come into the vicinity of the danger, it should be assessed on the likelihood of someone diving into the water in the middle of the night in mid-winter rather than looking at the incidences of diving during the summer months. Held Appeal allowed. The test of whether a duty of care exists under s. 1(3) Occupiers Liability Act 1984 must be determined hav ing regard to the circumstances prevailing at the time of the alleged breach resulted in injury to the claimant. At the time Mr.Donoghue sustained his injury, Folkestone Properties had no reason to believe that he or anyone else would be swimming from the slipway. Consequently, the criteria set out in s. 1 (3) (b) was not satisfied and no duty of care arose. 4. 1. 2. 2 Standard of care S. 1 (4) OLA 1984 the duty is to take such care as is reasonable in all the circumstances of the case to see that the other does not suffer injury on the premises by reason of the danger concerned. Revill v Newbery 1996 2 WLR 239 Court of Appeal Mr. Newbery was a 76 year old man. He owned an allotment which had a shed in which he kept various rich items.The shed was subject to frequent breaking and vandalism. Mr. Newbery had taken to sleeping in his shed armed with a 12 bore shot gun. Mr. Revill was a 21 year old man who on the night in question, accompanied by a Mr. Grainger, and went to the shed a t 2. 00 am in order to break in. Mr. Newbery awoke, picked up the shot gun and fired it through a small hole in the door to the shed. The shot hit Mr. Revill in the arm. It passed right through the arm and entered his chest. Both parties were prosecuted for the criminal offences attached. Mr. Revill pleaded guilty and was sentenced. Mr. Newbery was assoil of wounding. Mr.Revill brought a courtly action against Mr. Newbery for the injuries he suffered. Mr. Newbery raised the defense of ex turpi crusade, accident, self-defense and contributory negligence. Held The Claimants action was successful but his damages were reduced by 2/3 under the Law Reform (Contributory Negligence) Act 1945 to reflect his responsibility for his own injuries. On the application of ex turpi causa Neill LJ For the purposes of the present judgment I do not find it necessary to consider further the joint criminal attempt cases or the application of the doctrine of ex turpi causa in other areas of the law of t ort.It is sufficient for me to confine my attention to the liability of someone in the position of Mr. Newbery towards an intruding burglar. It seems to me to be clear that, by enacting section 1 of the 1984 Act, Parliament has decided that an occupier cannot treat a burglar as an outlaw and has delimit the scope of the duty owed to him. As I have already indicated, a person other than an occupier owes a similar duty to an intruder such as Mr. Revill. In paragraph 32 of their 1976 typography the Law Commission rejected the suggestion that there should be no duty at all owed to a trespasser who was engaged in a serious criminal enterprise. Ratcliff v McConnell and harper Adams College 1997 EWCA Civ 2679 Court of Appeal The claimant was a student at Harper Adams College. One night he had been out tipsiness with friends on campus and they decided they would go for a swim in the college kitty which was 100 yards from the student bar. They climbed over a locked gate into the open air swimming pool. The pool had a notice at the entrance which stated the pool would be locked and its use prohibit between the hours of 10pm -6. 30am.There was a notice at the change end in red on a White background stating Shallow end and a notice at the deep end stating thick(p) end, shallow dive. However, the boys did not see the signs because there was no light. The three boys undressed. The claimant put his toe in the water to test the temperature and then the three of them run along up along the side of the pool and dived in. Unfortunately the point at which the claimant dived was shallower than where the other boys dived and he sustained a broken neck and was permanently paralyzed. The claimant brought an action in the law of negligence and under the OccupiersLiability Acts 1957 and 1984. The trial judge held that the claimant was a trespasser since he was not permitted to go into the pool and that the College owed a duty of care under the 1984 Act since the pool had often b een used by students in the prohibited hours so the College should have been aware that the claimant was within a class of persons who may come into the danger. The breach was in not taking more preventative action to prevent use of the pool. The claimants damages were, however, reduced by 60% under the Law Reform (Contributory Negligence) Act 1945.The defendants appealed contending the evidence relied on by the claimant in terms of repeated trespass all took place before 1990 before they started locking the gates. Held The appeal was allowed. The claimant was not entitled to compensation. The defendant had taken greater steps to reduce trespass by students since 1990. The only incidence of trespass to the pool in the four years prior to the claimants injury, related to to students from a visiting college and therefore there was no reason for the college to suspect the students had come into the danger so no duty of care arose under s. (3) (b) Occupiers Liability Act 1984. Also the trial judge had incorrectly identified the danger. The pool itself was not dangerous it was the activity of diving into it which was unsafe. This was an obvious danger to which there was no duty to warn. By surrounding the pool with a 7 foot high fence, a locked gate and a prohibition on use of the pool in the stated hours the College had offered a reasonable level of protection. The duty may be carry out by giving a warning or discouraging others from taking the risk S. (5) Occupiers Liability Act 1984 note there is no obligation in relation to the warning to enable the visitor to be reasonably safe contrast the provision under the 1957 Act. Tomlinson v. Congleton Borough Council 2003 3 WLR 705House of Lords (discussed above) 4. 1. 2. 3Defenses Volenti non fit Injuria s. 1 (6) OLA 1984 no duty of care is owed in respect of risks willingly accepted by the visitor. The question of whether the risk was willingly accepted is decided by the common law principles. Contributory negl igence Damages may be reduced under the Law Reform Contributory Negligence) Act 1945 where the visitor fails to take reasonable care for their own safety. Exclusion of liability Whereas the 1957 Act allows an occupier to exclude liability (subject to the viands set out in UCTA 1977), the 1984 Act does not expressly confer such a right. This may be an oversight by the legislature and it may be possible to exclude liability since it is not expressly forbidden or it may be that the legislaturewas of the opinionthat it should not be possible to exclude liability for the basic level of protection afforded to trespassers. . 2 Liability for Manufacturers The narrow rule in Donoghue v Stevenson 1932 AC 562 recognizes that manufacturers owed a duty of care to ultimate consumers of the manufactured products. Over the years this duty was extended and refined and took on in practice some of the characteristics of strict liability. Parliament has now imposed such a strict liability on manufac turers under the Consumer Protection Act 1997.Although this act does not expressly have effect in place of the rules of common law( in the way that the Occupiers Liability Act do, in practice it affords more satisfactory remedies , and the narrow rule in Donoghue v Stevenson need no longer be studied in dot. 4. 3 Liability for employers An employee injured at work has three possible actions against the employer. i) An action in negligence for breach of the employers duty of care. This is the concern this chapter ii) An action for breach of statutory duties imposed by parliament on the employer. The principles of the tort of breach of statutory duty will be explained later.The content of the various regulations prescribing safety equipments, clothing, procedures and so forth fall outside the syllabus and are part of a specialist course in employment law. iii) The employer may be vicariously liable for the torts committed by another employee. The principle of and the justifications f or vicarious liability will be explained in detail later. For the present if is enough to note that an employer (even if not personally at fault) is in law answerable for the torts committed by employees in the course of their employment. The inter- relation between these actions is of some interest.Before 1948 an action based on vicarious liability was not available because of the doctrine of common employment. If A, an employee of X Ltd, tortuously injured B, another employee of X ltd, then X Ltd would be liable to C, but not to B, because A and B were in the common employment of X ltd. This doctrine provided protection for the employer against possible expensive tort claims. To offset this however the courts (a) modified the common law negligence action in a way that favored the employee and (b) permitted civil action for damages to be brought for breaches of safety regulations.The doctrine of common employment was abolished by statutes in 1948(Law Reform (Personal Injuries) Act 1948. So employees now have a vicarious liability claim and also the make of the modified common law action and actions for breach of statutory duty. The Nature of the Common Law doing The employers common law duty of care differs from the ordinary duty of care. It is said to be non-delegable. This is nigh clearly explained by Lord Hailsham of St Maryleborne in McDermid v Nash Dredging1987 AC 906 as follows this special sense does not involve the proposition that the duty cannot be delegated in the sense that it is incapable of being the subject of delegation, but only that the employer cannot escape liability if the duty has been delegated and then not properly performed. The facts of the case were that M was employed as a deckhand, by the defendants, but was sent by them to work on a ship operated by a different company (in fact the parent company of the defendants). He was seriously injured when the captain of the ship (not an employee of the defendants) carelessly operated th e safety systems.The defendants were liable because their duty had been delegated to the employees of the parent company and not properly performed. Details of this area would be discussed when looking at vicarious liability. But in summary it is worth(predicate) noting that employers owe a duty of care to their employees, but this duty is different in nature from the normal duty of care, being described as non-delegable. Court are now developing principles under which employees can also recover for the effects of work related stress. ==================================END========================================