1957 Act

Question 1

Why made

Answer 1

Simplify fairly complex common law
Common duty that applied to all visitors
S 1(2) classes of people to whom the occupier owes a duty remains as it is under common law

Invitees- permission to enter is in material interest of the occupier

For example a social call or quote for work

Licensees- material interest of the occupier
Anyone with permission
Only warnings given

Now must prove implied license

Question 2

Lowery v Walker (1911)

Answer 2

Ten members of the public use short cut
Objected but took no legal steps to stop it
Set loose horse which savaged claimant and was liable

Implied license in favour of the claimant

Question 3

Implied license

Answer 3

Contractual agreement;
Direct contract- decorator, Plumber
S5(1) common duty of care will apply unless the contract actually applies for a greater level of care
_ subcontractor classed as a licensee

Those not requiring permission- meter reader, police with warrant

S6(2) visitors for the purpose whether or not they have been given permission
A02- public and private right of way not covered- private covered by 1984 act
No duty to trespassers

Question 4

Holden v White (1982)

Answer 4

Milkman injured by manhole on d’s premises because of defective manhole cover

Not a visitor

National parks and access to countryside act (1949) excluded under s1(4)

Public right of way- common law used misfeasance but not non-feasance

Question 5

McGeown v Northern Ireland Housing executive (1994)

Answer 5

C lived in culdesac on housing estate owned by defendants
Footpath fell public right of way

Didn’t maintain footpath and her action failed

Question 6

Common duty of care

Answer 6

S2(1) same duty to all visitors unless extended, restricted, modified or excluded in agreement

Nature of the duty- s2(2) reasonable care reasonably safe for the purpose for which he is invited or permitted by the occupier to be there

‘Reasonable man’=forseeable risks

Question 7

Fryer v Pearson (2000)

Answer 7

Family visitor injured by needle
Not created danger
Distinguished ward v tesco stores where a greater duty is owed for spiked yoghurt

Objectively meaning reasonable in the circumstances

Question 8

Esdale v Dover District council (2010)

Answer 8

Block of flats
Path tripped
Tarmac and concrete

Rejected that they hadn’t acted reasonably

Question 9

Cole v Davis-Gilbert and the Royal British Legion (2007)

Answer 9

Woman broke her leg stepped on hole whilst crossing village green
Inserting maypole
Owner-sued to keep visitors safe
British legion- who filled hope 21 months prior
No duty on owner to check
No duty cos filled it

Tough shit

1957-activities lawful in visit
Keep visitor safe not maintain safe premises

Question 10

Liability for children

Answer 10

S2(3) must be prepared for children to be less careful than adults
The premises must be reasonably safe for a child of that age
Subjectively measured

Question 11

Maloney v Lambeth (1966)

Answer 11

4 year old fell through a gap in the railways guarding a stair well and was injured
Adult couldn’t fall through gap
Occupier held liable by the court

Question 12

Children

Answer 12

Unlikely to appreciate risks in a way that an adult would and may be attracted to danger

Guard against allurement

Question 13

Glasgow Corporation v Taylor (1922)

Answer 13

7 year old child ate poisonous berries in a botanical gardens and died
Shrub was not fenced off

Liable as would attract child
Allurement sufficient for liability

Question 14

Holley v London Borough of Sutton

Answer 14

Boat left on estuary for 2 years
Played in it
2 14- jacked up and 1 injured
Specific type of damage was not forseeable

Reversed some injury forseeable wagon mound

Question 15

Phipps v Rochester Corporation (1955)

Answer 15

5 year old injured in trench dug by the defendant council
They played frequently there

Parents look after their kids

Question 16

Liability to exercising a calling

Answer 16

S2(3)(b) guard against special risks ordinarily incident to it

Question 17

Roles v Nathan (1963)

Answer 17

Chimney sweeps died
Carbon monoxide fumes while cleaning flues in an industrial chimney
Should have waited

Question 18

Salmon v Seafarers Restsuraunts Ltd (1983)

Answer 18

Fish and chip shop fire
Firemen received injuries in relation to the fire

Liable

Question 19

Independent contractors

Answer 19

S2(4) damage caused to a visitor by a danger due to the faulty execution of any work or construction, maintenance or repair by and independent contractor employed by the occupier

Reasonable to entrust the independent contractor
Contractor must be competent
Inspect it
Hire

Question 20

Haseldine v Dawson & Son Ltd (1941)

Answer 20

Death of a claimant following the negligent repair of a lift by independent contractors
Too specialist

Question 21

Ferguson v Welsh (1987)

Answer 21

Demolition contractors were hired by the local authority and employed claimant
Unsafe working systems caused injury and local authority was liable

Question 22

Woodward v Mayor Of Hastings (1945)

Answer 22

Child injured in school steps left in a negligently icy state
Danger should have been obvious and so found liable

Question 23

Gwilliam v West Hertfordshire NHS Trust (2002)

Answer 23

Splat wall held at fundraising at hospital trust
Girl hurt herself as it was negligently assembled
Public liability insurance-expired

Should check for insurance but not breached duty

Question 24

Avoiding the duty

Answer 24

S2(1) occupiers are free to extend, restrict, modify or exclude his duty to visitors

Question 25

Warnings

Answer 25

S2(4)(a) a warning will not absolve the occupier of liabiliy unless in all circumstances it was enough to enable the visitor to be reasonably safe

Question 26

Rae v Mars ltd(1990)

Answer 26

Warning notice In respect of a deep pit inside the entrance of a dark shed with no artificial lighting
Warning was immediately inside the entrance and so the warning was insufficient to safeguard the visitor from the danger

When danger is obvious and sufficient steps have been taken there is no liability

Question 27

Beaton v Devon County Council (2002)

Answer 27

Claimant injured whilst riding through cycle tunnel
Good condition and good lighting I’m tunnel
2 gullies well known
Done everything practical to prevent risks

Question 28

Exclusion clauses

Answer 28

S2(1) of the 1957 act the right of the occupier to exclude liability ‘by agreement or otherwise’

Used in contract and effective notice

Question 29

Ashdown v Samuel Willian’s and sons ltd (1957)

Answer 29

Negligent shunting of railway trucks while on the occupiers land
Notices excluding liability bought to her attention and she was a contractual licensee

Question 30

Restrictions of exclusion clauses

Answer 30

Legal right
Strangers- tenants visitors , as they can’t agree to exclusion
S3(1) take advantage of protections
Children
Occupiers negligence- s2(1) unfair contract terms act 1977
Minimum standard of trespassers

Question 31

General defences

Answer 31

Contributory negligence- reducing awards of damages according to the extent to which the court believes that the visitor is responsible for his own injuries or loss

Volenti non fit injuria- consent
S2(5) allows that an occupier has no liability to a visitor in respect of risks willingly accepted as his by the visitor

Risk must be fully understood by the visitor

Question 32

Simms v Leigh RFC (1960)

Answer 32

No liability as rugby player sustained injury within normal rules of the game

Freely and voluntarily accepted the risk