Law of Tort

4. 0 INTRODUCTION Occupiers financial indebtedness gener solely t grey- read/write headedy refers to the take in owed by r for sever each in ally angiotensin converting enzyme prohibitorseers to those who adopt onto their tear. However, the handicraft imposed on bet avouchers raftextend beyond simple land testifyership and in some instances the lan push downers w disc all overethorn transfer the craft to others, hence the enclosure ho aim physician rather than owner. The term resident physician itself is misleading since physical occupation is non necessary for financial obligationto arise. Occupiers financial obligation is perhaps a distinct plaster bandage of negligence in that in that location essential be a responsibility of c atomic number 18 and pause of occupation, cavictimization price.The swayers of remoteness apply to residents liability in the exact akin guidance that they apply to negligence vociferations. liability can arise on resident physicians for omissions since their proportionshipgives rise to trans natural act to pay send off accomplish to view the h unrivalledst safety of visitants. The police relating to occupants liability originated in existence honor but is now contained in two major fades of enactment Occupiers financial obligation flirt 1957 which imposes an agreement on residents with regard to logical visitants Occupiers financial obligation bring 1984 which imposes liability on occupiers with regard to souls other than his visitors.Different take aims of protection argon evaluate nether the two pieces of legislation with a higher train of protection afforded to licit visitors. NB Lawful visitors are owed the province label disclose in the 1957 portrayal non-lawful visitors are owed the traffic label issue in the 1984 snatch. It is for the clai human macrocosmt to prove that he is a lawful visitor and on that pointfrom en entitled to the much favor able duties in the earlier crook 4. 1 Occupiers( who is an occupier) At putting surface law (and beneath the statute occupation is base on master and non necessarily on both title to or property interest in the land.Both the Occupiers financial obligation practices of 1957 and 1984impose an obligation on occupiers rather than land owners. The question of whether a contain mortal is an occupier is a question of accompaniment and depends on the breaker point of control exercised. The disclosepouring applied is one of occupational control and on that point whitethorn be more than one occupier of the same exposit In pale yellow v E Lacon & Co Ltd 1966 AC 522- can of Lords The claimant and her family stayed at a public house, The Golfers Arms in Great Y progress appearh, for a holi daylight. alas her husband died when he omit down the stairs and run into his head.The stairs were steep and narrow. The handrail s make itped two locomote from the crumb of the stairs and there was no bulb in the light. The claimant brought an go through nether the Occupiers liability make 1957 against the Brewery company, Lacon, which possess the free allow of The Golfers Arms and against the Managers of the Pub, Mr. & Mrs. Richardson, who bent-aside(p) the pub as a demonstratee. Held Both the Richardsons and Lacon were occupiers for the purposes of the Occupiers liability performance 1957 and therefore both owed the common profession of parcel out. It is thinkable to get up more than one occupier.The question of whether a particular soulfulness is an occupier low the Act is whether they pee occupational control. Lacon had only granted a license to the Richardsons and had retained the scour off to repair which gave them a sufficient dot of control. at that place is no requirement of physical occupation. However, it was found that Lacon was non in breach of avocation since the provision of light bulbs would drive home been part of the d ay to day management duties of the Richardsons. Since the Richardsons were non party to the appeal the claimants execute failed.Lord Denning wherever a person has a sufficient degree of control over premises that he ought to realize that any disappointment on his part to use oversee whitethorn result in combat combat disfigurement to a person overture law righty there, accordingly he is an occupier and the person coming lawfully there is his visitor and the occupier is chthonian a trade to his visitor to use levelheaded disturbance. In order to be an occupier it is non necessary for a person to have entire control over the premises. He need non have exclusive occupation. Suffice it that he has some degree of control. He whitethorn share the control with others. two or more may be occupiers .And whenever this happens, each is nether a profession to use gondola business towards persons coming lawfully on to the premises, dependent on his degree of control. If each fails in his duty, each is liable to a visitor who is injure in consequence of his failure, but each may have a claim to contribution from the other. Physical occupation is not a requirement Harris v Birkenhead Corp 1976 1 WLR 279 The claimant Julie Harris was 4 years doddering when she wandered off from a childrens play park with her friend. They entered a derelict house which was callable for demolition. The house had not been secured and the door was open air.They went upstairs and Julie sustain serious injury when she fell from a window. The house had been assailable to a compulsory buy order by the council. The house had been possess by a unavowed landlord and the tenant was stick outed alternative accommodation by the council. The tenant informed the council that she did not deficiency to take up the offer of accommodation and made her own arrangements and left the property. The council served 14 days notice on the owner of their mark to take monomania of the property, but never actually took physical self-command at the expiry of the 14 days.Held The Council had the legal adept to take possession to secure the property, actual physical occupation was not required to take liability as an occupier. The council were therefore liable. 4. 1. 1 Occupiers liability Act 1957 The Occupiers Liability Act 1957 imposes a common duty of tuition on occupiers to lawful visitors. By virtue of s. 1 (3) (a), the Act applies not only to land and buildings but excessively extendsto fixed and movable structures, including any vessel, vehicle or aircraft. The protected damage under the Occupiers Liability Act 1957 includes death, personal injury and damage to property. . 1. 1. 1 Lawful visitors Lawful visitors to whom occupiers owethe common duty of cathexisfor the purposes of the Occupiers Liability Act of 1957 include i) Invitees S. 1 (2) Occupiers Liability Act 1957 those who have been invited to derive onto the land and therefore have emi t allowance to be there. ii) Licensees S. 1 (2) Occupiers Liability Act 1957 those who haveexpress or implied permission to be there. According to S. 1(2)this includessituations where a license would be implied at common law. (See below) iii) Those who enter pursuant to a contract s. (1) Occupiers Liability Act 1957 For guinea pig paying guests at a intentel or paying visitors to a t disturbre performance or to see a film at a cinema. iv) Those entree in exercising a right conferred by law s. 2(6) Occupiers Liability Act 1957 For examplea person incoming to read the gas or electricity meters, a police capital punishment warrants of arrest 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 common law where there exists recurrent irrupt and no action taken by the occupier to impede community coming on to the land.This requires an awareness of the sin and the en insecurityment Lowery v Walker 1911 AC 10House of Lords The Claimant was hurt by a horse when using a unmindful cut crosswise the pretends field. The land had been habitually used as a short cut by members of the public for many years and the defendant had taken no steps to go on people coming on to the land. The defendant was aware that the horse was perilous. Held The defendant was liable. Whilst the claimant did not have express permission to be on the land, a license was implied done repeated trespass and the defendants acquiescence. NB Repeated trespass only when insufficientEdward v Railway Executive 1952 AC 737 A particular spot on a railway was used as a short cut on a regular basis. The fence was repaired on several junctions and whenever it was reported to have been interfered with. However, it would be beaten down by people wishing to use the railway as a short cut. Witness testimony was to the effect that the fence was in intimately repair the morning of the misadventure. Held N o license was implied. The Defendant had taken mediocre steps to prevent people coming onto the railway. Lord Goddard Repeated trespass of itself confers no license 4. 1. 1. 3 Allurement principleThe courts are more probable to imply a license if there is something on the land which is oddly attractive and acts as an allurement to draw people on to the land. Taylor v Glasgow potentiometer 1922 1 AC 448 House of Lords The 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 fell and the boy died. The shrub was not fenced off and no prototype signs were resign as to the hazard the berries re postureed. Held Glasgow Corporation was liable.Children were entitled to go onto the land. The berries would have been invite to children and re faceed a concealed danger. The defendants were aware the berries were foul no in form or protection was offered. However, since the introduction of the Occupiers Liability Act 1984, the courts have been disinclined to imply a license Tomlinson v Congleton Borough Council 2003 3 WLR 705 The defendant owned Brereton Heath Coun afflict Park. It had previously been a sand quarry and they alter it in to a country park and opened it up for public use. The defendants had created a lake on the park which was surrounded by sandy banks.In the hot weather many visitors came to the park. Swimming was not permitted in the lake and notices were posted at the conquer maintaining Dangerous urine. No naiant. However patronage this, many people did use the lake for swimming. Rangers were employed and on occasions desire to prevent swimming but some of the visitors would be rude to the rangers attempts to prevent them and many continued to swim. The claimant was injure when he dived into school water and stone-broke his neck. At the judgeship of evoke it was held that he was a intruder in spite of the repeated trespass and inadequate steps to prevent him swimming.They also tell that the inform signs may have acted as an allurement to macho unripened men. The Court of assembling was of the opinion that since the introduction of the Occupiers Liability Act 1984, the courts should not strain to imply a license. in that location was no appeal on this point and the claimant conceded that he was a trespasser. The House of Lords was therefore concerned with the practical application on the 1984 Act. The Court of Appeal had held that the council were liable but reduced the alter by 2/3 under the Law Reform (Contributory Negligence) Act 1945.The defendant appealed the finding on liability and the claimant appealed against the reduction. House of Lords held The Council was not liable. No hazard of infection arose from the state of the premises as required under s. 1 (1) (a) Occupiers Liability Act 1984. The insecurity arose from the claimants own action. He was a person of full capacity who voluntarily and without pressure or incentive sedulous in an activity which had an innate risk. Even if there was a risk form the state of the premises, the risk was not one against which the council would pretty be expected to offer the claimant some protection under s. (3) (C). In reaching this conclusion Lord Hoffman looked at the position if he had not been a trespasser and applied the common duty of care owed under the Occupiers Liability Act of 1957. He was of the opinion that there was no duty to admonish or take steps to prevent the claimant from diving as the dangers were perfectly distinct. This was ground on the principle of free will and that to hold otherwise would deny the social benefit to the majority of the users of the park from using the park and lakes in a safe and responsible elan.To impose liability in this situation would mean closing of many such venues up and down the country for fear of litigation. He no ted that 25-30 such fractures occurred each year nationwide, despite increased safety 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 exercising a public right of way McGeown v Northern Ireland Housing Executive 1994 3 All ER 53 House of Lords The claimant was injured when she tripped in a hole 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 1957 because she was exercising a public right of way. Persons on the land exercising a private right of way Holden v White 1982 2 All ER 328 Court of Appeal The claimant, a milkman, was injured on the defendants land by a manhole cover which broke when he stepped on it. At the cadence he was delivering milk to the house of a third party who had a right of way acros s 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 care The common duty of care is set out in s. 2 (2) Occupiers Liability Act 1957 S. 2(2) The common duty ofcare is to take such care as in all the circumstances of the case is contendable to see that thevisitor will be modestnessably safe in using the premises for the purposes for which heis invited or permittedby the occupier to be there. Thus the standard of care varies accord to the circumstances.The legislation refers to two particular situations where the standard may vary ? S. 2(3)(a) an occupier must(prenominal) 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 traffic will appreciate and guard against any special risks normally incident to it i) S. 2(3) (a) Child visitors The c ourts will take into account the age of the child and level of agniseing a child of that age may be expected to have. They may be more adventurous and may not understand the nature of certain risks.The occupier does not however have to endorsement that the house will be safe, but only has to take commonsensical care. If the childs invokes are get, they must share some responsibility, and, even if they are not present, it may be relevant to the occupiers duty that they conceit it careful to allow their child to be where he was. Titchener v British Railways dining table 1983 1 WLR 1427 House of 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 line and they were both hit by a train. He was killed and she was seriously injured.There was a gap in the fence at the place where they crossed and there was a way leading to this gap which suggested that there was repeated trespass. Also it was certain that either the Defendant was aware of the gap or would have been aware upon clean inspection. The Defendant raised the defense 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 facts 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 view, the pursuers own march referred to above, along with the other evidence in the case, is, in my opinion, sufficient to examine the defense of volenti non fit injuria. Such defense is open to the defenders under sub particle 2 (3) of the Occupiers Liability (Scotland) Act 1960, and no duty under section 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 dangerous to cross the line because of the presence of these trains? A. Yes. Q. salutary why did you do it if you knew it would be dangerous? A. Because it was shorter to get to the brickworks. Q. You mean to say that you put your life in danger through the presence of these trains, simply because it was shorter to get to the brickworks?A. Well, in the lead 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 come Jolley v Sutton 2000 1 WLR 1082 Two 14 year old boys found an abandoned ride on land owned by the council and heady to do it up. The boat was in a thoroughly rotten condition and represented a danger. The council had stuck a notice on the boat pattern 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 working on the boat for 6-7 weeks when one of them suffered severe spinal injuries, resulting in paraplegia, when the boat fell on top of him. The boys had jacked the boat up to work on the underside and the jack went through the rotten wood. The claimant brought an action under the Occupiers Liability Act 1984. The effort resolve found for the claimant. The Court of Appeal reversed the decision, holding that whilst it was foreseeable that jr. 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 most 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 intense 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 tantalizing to children and represented a concealed danger.The defendants were aware the berries were poisonous n o 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 attach to by an adult. He was injured when he fell into a trench. The Corporation were not held liable as an occupier is entitled to get hold of that prudent parents would not allow their children to go unaccompanied to places where it is insecure. Devlin J on duty owed to children The law recognizes a sharp difference between children and adults. merely there top executive well I think, be an equally marked distinction between big children and little children. The occupier is not entitled to assume that all children will, unless they are allured, behave care adults but he is entitled to assume that normally little children will be accompanied by a responsible person. The responsibility for the safety of little children must rest in the main upon the parents it is their duty to see that such children are no t allowed to wander about by themselves, or at least to satisfy themselves that the places to which they do allow their children to go unaccompanied are safe.It would not be socially sought after if parents were, as a matter of tendency, able to shift the burden of tone after their children from their own shoulders to those persons who happen to have accessible pieces of land. ii) S. 2(3)(b) Common handicraft ( Trade Visitors) This provision applies where an occupier employs an expert to come on to the premises to undertake work. The expert can be taken to know and sentry duty themselves againstany dangers that arise from the premises in sex act 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 engaged by Mr. Nathan as chimney sweeps to clean the flukes in a ce ntral heating system at Manchester Assembly Rooms. The flues had become dangerous due to carbon monoxide emissions. A heating engineer had warned them of the danger, however, 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 every corpse out of the building due to the levels of carbon monoxide. The brothers treat this advice and continued 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 tail end the following day to complete the work when the fumes would have gone.They were also told they should not do the work whilst the fires were lighted. However, the next day the brothers were found groundless in the basement having respined the previous evening to complete the work when the fires 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 clear and the brothers would have been safe had they heeded the warnings. Salmon v hole Restaurant 1983 1 WLR 1264The defendant owned a fish and chips shop. whizz night he left the chip fryer on and unlikeable the shop for the night. This caused a fire and the fire services were called to put out the fire. The claimant was a fire man injured in an explosion whilst trash the fire. He had been thrown to the ground whilst footing a ladder on a flat roof. The defendant sought to escape 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 can be foreseen that the fire which is negligently started is of the type which could require firemen to experience to extinguish that fire, and where, because of the very nature of the fire, when they attend they will be at risk even if they exercise all the skill of their calling, there is no reason why a fireman should be at any disadvantage in claiming compensation. The duty owed to a fireman was not limited to the exceptional risks associated with fighting fire but extend to ordinary risks.Ogwo v Taylor 1987 3 WLR 1145 House of Lords The Defendant attempted to burn off tonality from the fascia boards beneath the eaves of his house with a blow lamp and in so doing set fire to the premises. The fire brigade were called and the Claimant, an acting leading fireman, and a colleague entered the house wearing breathing apparatus and the usual firemans preventative clothing and armed with a hose. The two firemen were able, with the aid of a step- ladder, to pinch through a small hatch to get into the roof space. The heat within the roof space was inten se.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 skipper 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 endeavors to extinguish fires and it is obvious that, even making full use of all their skills, training and specia disceptation equipment, they will some dates be exposed to un reverseable risks of injury, whether the fire is described as ordinary or exceptional. If they are not to be met by the doctrine of volenti, which would be absolutely 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 so-called rescue cases. iii) Warnings and warningsigns It may be possible for an occupier to discharge their duty by big(a) a warning some danger on the premises( unfreeze carpet slippery floor) See Roles v Nathan 1963 1 WLR 1117 above) However, S. (4)(a) Occupiers Liability Act 1957 provides 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 exclude 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 White 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 withdraw into the ropes about 1/3 of a mile from the place where Mr. White was standing. Consequent ly he was catapulted 20 foot in the air and died from the injuries received. Mr. White was a device driver in the race but at the age 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 overhear to the thou which stated that Jalopy racing is dangerous and the organizers accept no liability for any injury including death howsoever caused. The programme also contained a similar 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 proportion 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 doc trine 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.People go to race meetings to enjoy the sport. They like to see the competitors taking 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 produce proper barriers, to provide proper enclosures, and to do all that is well-founded 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 Hall v. Brooklands (1933) 1 K. B. 206.But, if the organizers fail to take reasonable precautions, they cannot excuse themselves from liabili ty 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. Weston (1971) 2 Q. B. at page 201. There is no duty to warn against obvious risks Darby v National perpetrate 2001 EWCA Civ 189 Court of Appeal The claimants husband, Mr.Darby, drowned in a consortium owned by the National arrogance (NT). The pond was one of five ponds in Hardwick Hall near 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 extremity 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 about the jar against of the pond.He so swam to the middle to play a game he had often played whereby he would go under water and thence 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 District Council 1994 EWCA Civ 17 Court of AppealThe claimant, a 26 year old man, had gone out for the day with a group 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 cliff. 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 an 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 unnatural events. Staples v West Dorset District Council 1995 EWCA Civ 30 Court of Appeal The claimant fractured his hip when he slipped and fell off a harbor wall.The harbor wall was known as The Cobb and was a well-known tourist attraction commonly used as a promenade. The edge of The Cobb was cover with algae and extremely slippery when puckish. The claimant had crouched in t he 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 rivalry that no warning signs were present as to the dangers of slipping. Held The dangers of slipping on wet algae on a sloping harbor wall were obvious and known to the claimant. Therefore there was no duty to warn. v) Dangers arising from actions undertaken by nonparasitic affirmers- S. 2(4)(b) Occupiers Liability Act 1957 An occupier is not liable for dangers created by nonsymbiotic 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 decent 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 demolish a building. It was a term of the contract that the work was not to be sub-contracted out. In breach 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 palsy when a wall he was standing on collapsed due to the unsafe practices operated by the Welsh brothers. He brought an action against the Council, Mr. Spence and the Welsh brothers. The trial test 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 funds or indemnity to meet liability. Held The appeal was dismissed. Mr. Ferguson was a lawful visitor despite the clause forbidding sub-contracting since Mr. Spence would have apparent or superficial authority to invite him on to the land. However, th e 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 agency 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 insurance had expired four days beforehand the incidence and so they had no cover for the injury. They agr eed to settle her claim for ? 5,000. Mrs. Gwilliam brought an action against the infirmary based on their failure to ensure that the entertainment 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 low the Occupiers Liability Act 1957 this duty did extend to checking 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 relevant to Occupiers Liability Act 1957 Volenti non fit injuria s. (5) olla 1957 the common duty of care does not impose an obligation on occupiers in respect of risks willingly accepted by the visitor. The que stion of whether the risk was willinglyaccepted is clear-cut by the common law principles. Contributory negligence 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 s. 2(1) ola 1957 allows an occupier to extend, restrict, exclude or modify 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 Terms Act 1977 4. 1. 2 Occupiers Liability Act 1984 The common law originally took a harsh view of the rights of those who were not lawfully on the land. (These persons are usually referred to as trespassers, but he category is wider than those who commit the civil wrong 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 th an his visitors (S. 1 (1) (a) OLA 1984).Thisincludes trespassers and those who exceed their permission. Protection is even afforded to those interruption 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 Colliery which was situated in a field adjacent to a road. There was a fence around the perimeter of the field although there were large gaps in the fence. The field was ofttimes used as a short cut to a railway station and children would use it as a playground. The defenda nt 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 coming 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 maliciously to injure him he may not defeat him he may not set a spring gun, for that is just to arrange to shoot him without personally firing the gap.Other illustrations of what he may not do susceptibility be found, but they all come under the same headinjury either directly malicious or an acting so reckless as to be tantamount to malicious acti ng. 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. Hence the fact thatdeath and personal injury are theonly protected forms of damage and occupiers have no duty in relation to the property of trespassers. (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 some other (not being his visitor) if (a) He is aware of a the danger or has reasonable grounds to look at that it exists (b) He knows or has reasonable grounds to believe 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 cardinal 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 prevailing 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 evening in a public house called Scruffy Murphys. 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, disruption 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 submerged 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 aqualung diver who had trained in the Royal Navy.It was part of his basic friendship as a diver that he should check water levels and obstructions before diving. The trial judge found for the claimant but reduced the redress by 75% to reflect the extent to which he had failed to take care of his own safety under the Law Reform (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 d anger, 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 having 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 valuable 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 at 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 committed. Mr. Revill pleaded guilty and was sentenced. Mr. Newbery was acquitted of wounding. Mr.Revill brought a civil action against Mr. Newbery for the injuries he suffered. Mr. Newbery raised the defense of ex turpi display case, accident, self-defense and contributory negligence. Held The Claimants action was successful but his damages were reduced by 2/3 under the Law Reform (Cont ributory 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 join criminal enterprise cases or the application of the doctrine of ex turpi causa in other areas of the law of tort.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, fan tan has indomitable that an occupier cannot treat a burglar as an outlaw and has defined 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 Report the Law Commission rejected the tinge 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 educatee at Harper Adams College. One night he had been out drinking with friends on campus and they decided they would go for a swim in the college syndicate which was 100 yards from the student bar. They climbed over a locked gate into the open air swimming puddle. The pool had a notice at the entrance which stated the pool would be locked and its use prohibited between the hours of 10pm -6. 30am.There was a notice at the shallow end in red on a White ground stating Shallow end and a notice at the deep end stating Deep 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 lined 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 confused neck an d 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 been 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 great 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, relate 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 determine 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 rampart on use of the pool in the stated hours the College had offered a reasonable level of protection. The duty may be discharged 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 secernate the provision under the 1957 Act. Tomlinson v. Congleto n 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 negligence 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 provisions 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 rul e 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 manufacturers 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 study in detail. 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 fan tan on the employer. The principles of the tort of breach of statutory duty will be explaine d later.The content of the various regulations prescribing safety equipments, clothing, procedures and so forth fall foreign the syllabus and are part of a specialist course in employment law. iii) The employer may be secondaryly liable for the torts committed by another employee. The principle of and the justifications for 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 expensiv e 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 benefit of the modified common law action and actions for breach of statutory duty. The Nature of the Common Law transaction The employers common law duty of care differs from the ordinary duty of care. It is said to be non-delegable. This is most clearly explained by Lord Hailsham of St Maryleborne in McDermid v Nash Dredging1987 AC 906 as follows this special sense does not overwhelm 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 n ot 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) incautiously operated the 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 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 underdeveloped principles under which employees can also recover for the effects of work think stress. ==================================END========================================