Law of Tort

4. 0 INTRODUCTION Occupiers indebtedness generally refers to the job owed by charge avouchers to those who perform onto their cut back. However, the profession chatterd on land testifyers pile the stairsstructureextend beyond simple land knowledgeership and in most instances the landowners w work stoppageethorn transfer the business to a nonher(prenominal)s, hence the bourne place physician rather than owner. The term occupier itself is mis wind since visible occupation is non necessary for obligationto arise. Occupiers indebtedness is perhaps a distinct form of disuse in that on that point essential be a debt instrument of care and breach of work, causing disability.The rules of farness apply to occupiers liability in the exact same elan that they apply to omission deals. financial obligation can arise on occupiers for omissions since their singingshipgives rise to vocation to fulfill action to ensure the springable base h one-time(a) of visit ants. The legality relating to occupiers liability origin outletd in public police force hardly is now contained in two study pieces of legislation Occupiers obligation forge 1957 which imposes an obligation on occupiers with depend to law of natureful visitants Occupiers liability re contribute 1984 which imposes liability on occupiers with regard to psyches other than his visitors.Different levels of fortress are expected on a lower floor the two pieces of legislation with a higher level of protection afforded to lawful visitors. NB Lawful visitors are owed the affair set show up in the 1957 chip non-lawful visitors are owed the duty set out in the 1984 sham. It is for the clai piecet to prove that he is a lawful visitor and in that respectfore entitled to the more favorable duties in the earlier lick 4. 1 Occupiers( who is an occupier) At run-of-the-mill law (and infra the statute occupation is found on control and non necessarily on every title to or property interest in the land.Both the Occupiers liability proceedings of 1957 and 1984impose an obligation on occupiers rather than land owners. The question of whether a actuateicular someone is an occupier is a question of fact and depends on the decimal point of control exercised. The test applied is one of occupational control and at that place whitethorn be more than one occupier of the same premise In Wheat v E Lacon & Co Ltd 1966 AC 522- support of Lords The claimant and her family stayed at a public residence, The Golfers munition in Great Yarmouth, for a holi con none solar daytime. Unfortunately her husband died when he evil down the stairs and hit his head.The stairs were steep and surplusise. The handrail stopped two steps from the bottom of the stairs and on that point was no bulb in the light. The claimant brought an action downstairs the Occupiers Liability Act 1957 against the Brewery play along, Lacon, which owned the freehold of The Golfers ordn ance store and against the Managers of the Pub, Mr. & Mrs. Richardson, who occupied the pub as a manifeste. Held Both the Richardsons and Lacon were occupiers for the purposes of the Occupiers Liability Act 1957 and therefore both owed the familiar land duty of care. It is possible to suck more than one occupier.The question of whether a particular psyche is an occupier on a lower floor the Act is whether they redeem occupational control. Lacon had only granted a license to the Richardsons and had retained the slump to repair which gave them a sufficient degree of control. thither is no requirement of visible occupation. However, it was make up that Lacon was non in breach of duty since the provision of light bulbs would pretend been part of the day to day management duties of the Richardsons. Since the Richardsons were non party to the appeal the claimants action failed.Lord Denning wherever a person has a sufficient degree of control over premise that he ought to rea lize that any bereavement on his part to use care whitethorn result in lesion to a person attack law luxurianty there, past he is an occupier and the person coming lawfully there is his visitor and the occupier is under a duty to his visitor to use fairish care. In say to be an occupier it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with others. Two or more may be occupiers .And whenever this happens, each is under a duty to use care 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 wound in consequence of his failure, tho each may have a claim to contri saveion from the other. Physical occupation is not a requirement Harris v Birkenhead Corp 1976 1 WLR 279 The claimant Julie Harris was 4 familys old when she wandered glum from a childrens play placeland with her friend. They entered a derelict reside which was due for demolition. The house had not been secured and the door was open.They went up the stairs and Julie sustained serious injury when she fell from a window. The house had been subject to a compulsory secure order by the council. The house had been owned by a secluded landlord and the tenant was offered alternative allowance by the council. The tenant informed the council that she did not want to take up the offer of accommodation and make her own rigments and left the property. The council served 14 days bump on the owner of their intention to take obstinacy of the property, but never actually took physical possession at the expiry of the 14 days.Held The Council had the legal set to take possession to secure the property, actual physical occupation was not required to incur liability as an occupier. The council were therefore liable. 4. 1. 1 Occupiers Liability Act 1957 The Occupier s Liability Act 1957 imposes a prevalent duty of care on occupiers to lawful visitors. By virtue of s. 1 (3) (a), the Act applies not only to land and builds but also 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 carefor 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 come onto the land and therefore haveexpress permission to be there. ii) Licen waits 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 example paying guests a t a hotel or paying visitors to a theatre performance or to see a film at a cinema. iv) Those entering in exercising a right conferred by law s. 2(6) Occupiers Liability Act 1957 For examplea person entering to read the gas or electricity meters, a practice of law executing 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 repeated attack and no action taken by the occupier to proscribe muckle coming on to the land.This requires an apprisedness of the trespass and the stakeiness Lowery v Walker 1911 AC 10House of Lords The Claimant was injured by a horse when using a short cut across the suspects field. The land had been habitually used as a short cut by members of the public for many a(prenominal) years and the suspect had taken no steps to pr tear downt volume coming on to the land. The defendant was alive(predicate) that the horse was self-destructive. Held The defendant was liable. Whilst the claimant did not have express permission to be on the land, a license was implied through repeated trespass and the defendants acquiescence. NB perennial trespass alone insufficientEdward v Rail focusing Executive 1952 AC 737 A particular radar tar puzzle on a railway was used as a short cut on a regular basis. The fence was repaired on several occasions 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 affirmation was to the effect that the fence was in good repair the morning of the incident. Held No license was implied. The suspect had taken valid 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 give carely to imply a license if there is something on the land which is particularly attractive and acts as an ingathering to draw people on to the land. Taylor v Glasgow flock 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 cruel and the boy died. The shrub was not fenced off and no warning distinctions were consecrate as to the danger the berries re put forwarded. Held Glasgow corp was liable.Children were entitled to go onto the land. The berries would have been alluring to children and represented a conceal danger. The defendants were aware(predicate) the berries were poisonous no warning 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 Coun judge Park. It had previously been a sandpaper quarr y and they transformed 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 presentments were posted at the entrance saying Dangerous piddle. No locomote. However patronage this, many people did use the lake for swim. Rangers were employed and on occasions sought 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 injured when he dived into shallow water and broke his neck. At the Court of approach it was held that he was a trespasser in spite of the repeated trespass and inadequate steps to prevent him swimming.They also stated that the warning signs may have acted as an allurement to macho young men. The Court of Appeal was of the opinion that since the introduction of the Occupiers Liability Act 1984, the c ourts should not draw out to imply a license. There was no appeal on this point and the claimant conceded that he was a trespasser. The House of Lords was therefore pushed with the application on the 1984 Act. The Court of Appeal had held that the council were liable but cut down the change by 2/3 under the Law Reform ( contributory Negligence) Act 1945.The defendant appealed the conclusion on liability and the claimant appealed against the reduction. House of Lords held The Council was not liable. No assay arose from the state of the premises as required under s. 1 (1) (a) Occupiers Liability Act 1984. The risk arose from the claimants own action. He was a person of full capacity who voluntarily and without pressure or inducement occupied in an activity which had an natural risk. tear down if there was a risk form the state of the premises, the risk was not one against which the council would sensibly be expected to offer the claimant some protection under s. (3) (C). In r eaching 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 warn or take steps to prevent the claimant from nosedive as the dangers were perfectly obvious. This was based on the principle of free leave behind and that to hold otherwise would deny the social bene rifle to the majority of the users of the park from using the park and lakes in a safe and responsible manner.To impose liability in this situation would mean closing of many much(prenominal) venues up and down the country for fear of litigation. He noted 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 McG eown v Northern Ireland Housing Executive 1994 3 All ER 53 House of Lords The claimant was injured when she tripped in a locating 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 time 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 care The common duty of care is set out in s. 2 (2) Occupiers Liability Act 1957 S. 2(2) The comm on duty ofcare is to take such care as in all the lot of the chemise is reasonable to see that thevisitor will be passably safe in using the premises for the purposes for which heis invited or permittedby the occupier to be there. consequently the standard of care varies according to the luck.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 guard against any special risks unremarkably incident to it i) S. 2(3) (a) Child visitors The courts will take into account the age of the child and level of understanding(a) 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 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 thought it prudent to allow their child to be where he was. Titchener v British Railways maturate 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 pathway leading to this gap which suggested that there was repeated trespass. Also it was accredited that either the suspect was aware of the gap or would have been aware upon reasonable 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 take the stand referred to above, along with the other evidence 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 section 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 volitionally 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. Well 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, earlier 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 expectation 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 order an abandoned boat on land owned by the council and decided 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 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 working on the boat for 6-7 weeks when one of them suffered severe spinal anesthesia injuries, resulting in paraplegia, when the boat fell on top of him. The boys had jacked the boat up to work on the fundament and the jack went through the rotten wood. The claimant brought an action under the Occupiers Liability Act 1984. The campaign judge piece for the claimant. The Court 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 distinct manner in which the injury came about and its extent is not definitively answered by either The Wagon hill ( 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 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 assu me 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 disparity amongst children and adults.But there might 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 like 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 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 execute 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 matter of course, able to shift the burden of looking after their children from their own shoulders to those persons who happen to have accessible pieces of land. ii) S. 2(3)(b) putting surface calling ( 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 safeguard 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 engaged by Mr. Nathan as chimney sweeps to clean the flues in a central 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 everybody out of the building due to the levels of carbon monoxide. The brothers ignored 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 back the following day to sub the work when the fumes would have gone.They were also told they should not do the work whilst the go overs 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 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 name and the brothers would have been safe had they heeded the warnings. pinkish-orange v Seafarer Restaurant 1983 1 WLR 1264The d efendant owned a fish and chips shop. One iniquity he left the chip fryer on and closed 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 gird combat 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 belligerent 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 attend 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 li mited to the exceptional risks associated with fighting fire but extended to ordinary risks.Ogwo v Taylor 1987 3 WLR 1145 House of Lords The Defendant attempted to burn off paint 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 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 seem from scalding steam which must have penetrated his protective clothing. Held A duty of care was owed to a passe-partout fireman. There was no requirement that the risk be exceptional. The defense of volenti had no application. Lord Bridge The duty of professional fir emen is to use their best endeavors to extinguish fires and it is obvious that, even making full use of all their skills, instruct 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 doctrine of volenti, which would be utterly repugnant to our present-day(a) 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 giving a warning some danger on the premises(Loose 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 modify the visi tor to be fair safe. The occupier i. e merely attempting to perform or to discharge his duty of care he is not attempting to throw 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 turn 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 spend into the ropes about 1/3 of a stat mi 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 Jalop y racing is dangerous and the labor 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 expeld 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 forefendd 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 o f 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 rig 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 Hall v. Brooklands (1933) 1 K. B. 206.But, if the organizers fail to take reasonable precautions, they cannot excuse 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 baffle 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 w arn against obvious risks Darby v National Trust 2001 EWCA Civ 189 Court of Appeal The claimants husband, Mr.Darby, drowned in a pond owned by the National Trust (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 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 pass months. On the day in question Mr. Darby had been paddling with his children more or less the edge of the pond.He then swam to the middle to play a game he had practically 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 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 unbroken under close supervision. However, there was no such sign at the entrance used by the claimant. The claimant brought an action based o n 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 District Council 1995 EWCA Civ 30 Court of Appeal The claimant fractured his hip when he slipped and fell off a harbor paries.The harbor argue 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 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 arguing 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 independent contractors- 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 right on done and the contractor was competent. Ferguson v rip off 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 ship out the demolition who in turn engaged the services of Mr. Ferguson to assist. Mr. Ferguson suffered serious injury resulting in eonian paralysis 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 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 funds or insurance 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 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 means of Velcro material. The injury occurred as a result of negligent set up of the equipment.The equipment was provided bya business called Club funs who were an independent contractor engaged by the Hospital. Club Entertainments public liability insurance had expired four days before the incidence and and so they had no cover for the injury. They agreed to settle her claim for ? 5,000. Mrs. Gwilliam brought an action against the hospital 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 Under the Occupiers Liability Act 19 57 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 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 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 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 below the belt 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 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 evil intent see Revill v Newbery 1996 2 WLR 239. Whilst it may at prototypic 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 frequently used as a short cut to a railway station 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 attractor 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 tr im down 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 shoot 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 subject matter 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 another (not organism his visitor) if (a) He is aware of a the danger or has reasonable grounds to believe that it exists (b) He knows or has reasonable grounds to believe the other is in the neck of the woods 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 three 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 hi s intention, with some of his friends, to go for a midnight swim in the sea. Unfortunately in his bang 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 character 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 scuba diver who had trained in the Royal Navy.It was part of his basic knowledge as a diver that he should check water levels and obstructions befo re 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 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 one-on-one 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 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 unbroken 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 awok e, 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 suit, accident, self-defence 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 enounce 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 att ention 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, fantan has decided 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 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 drinking with friends on campus and they decided they would go for a swim in the college kitty which was ampere-second yards from the student bar. They climbed over a locked gate into the open air swimming pool. The pool had a notice at the en trance which stated the pool would be locked and its use interdict between the hours of 10pm -6. 30am.There was a notice at the shallow end in red on a White background stating alter 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 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 been used by students in the prohibited hours so the Coll ege 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 students from a visit 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 it self 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 era 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 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 negligence Damages may be reduced under the Law Reform Contri butory 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 rule in Donoghue v Stevenson 1932 AC 562 recognizes that manufacturers owed a duty of care to ultimate consumers of the manufactured products. everywhere 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.Al though 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 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 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 outdoors 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 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 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 liab ility claim and also the benefit of the modified common law action and actions for breach of statutory duty. The Nature of the Common Law Action The employers common law duty of care differs from the ordinary duty of care. It is give tongue to 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 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 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 ontogenesis principles under which employees can also recover for the effects of work related stress. ==================================END========================================