Occupier's liability Flashcards
(40 cards)
Tomlinson v Congleton BC [2004] 1 AC 46
OLA 1984
Held: allowing the appeal, that the lake did not present risks due to the state of the premises or anything done or omitted to be done on the premises, pursuant to s.1(1)(a) of the 1984 Act. Accordingly, there was nothing which gave rise to a duty on the part of the local authority. Even if swimming had not been prohibited and the local authority had owed a duty under s.2(2) of the 1957 Act, it would not have been required to take steps to prevent T from diving or to warn him against dangers which were obvious. T was a person of full capacity who had voluntarily chosen to engage in an activity which had inherent dangers.
+ was activity NOT occupancy just like (Geary and Keown)
Facts: A local authority appealed against a decision ([2002] EWCA Civ 309, [2003] 2 W.L.R. 1120) that, as the owner and occupier of a country park, it had owed a duty of care to T pursuant to the[Occupiers’ Liability Act 1984 s.1and was liable for serious personal injuries that T had sustained when he dived into the shallow water at the edge of a lake and struck his head on the bottom.
Swimming in the lake was prohibited and the local authority had erected notices and distributed leaflets warning of the dangers of swimming in the lake. It was accepted that the relevant statutory duty was that owed to a trespasser under the 1984 Act and not the duty owed to a lawful visitor under the[Occupiers’ Liability Act 1957 s.2(2) because, by virtue of the prohibition on swimming, when T had entered the water to swim he had become a trespasser. T argued that the local authority had owed him a duty under s.1(4) of the 1984 Act to take such care as was reasonable in all the circumstances to ensure that he did not suffer injury on the premises by reason of the danger concerned. Further, that that duty had not been discharged by the erection of notices because people had ignored those notices which meant that they were obviously ineffectual.
Cavalier v Pope [1906] AC 428
pre OLA case - ??
the landlord knew that the premises were dilapidated when he let them and had covenanted with his tenant to repair them, but had failed to do so. However, when the tenant’s wife suffered injury by reason of the state of the premises, of which she too was aware, her claim against the landlord failed because she was a stranger to the contract.
Wheat v Lacon and Co Ltd [1966] AC 552
OLA - occupier
Per Denning, M.R.: “Wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then 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 reasonable care.”
Held: D were occupiers either because D can occupied through its employees (majority), or, per Denning (minority), through control of the premises despite no physical occupation – especially as hey had the power to enter and repair the building + had not granted a property right.
Reasoning: Both the Richardsons and Lacon were occupiers for the purposes of the Occupiers Liability Act 1957 and therefore both owed the common duty of care. It is possible to have more than one occupier. The question of whether a particular person is an occupier under the Act is whether they have occupational control. Lacon had only granted a license to the Richardsons and had retained the right to repair which gave them a sufficient degree of control. There is no requirement of physical occupation.
NB: on the facts, there was no duty of care
Facts: The manager of a public-house was allowed by the defendants, the owners, to take paying visitors, who were accommodated in part of the premises labelled “Private” of which the manager was licensee. The plaintiff’s husband, while a paying visitor, was killed by a fall from a staircase on the “private” part. The claimant brought an action under the Occupiers Liability Act 1957 against the Brewery company, Lacon, which owned the freehold of The Golfer’s Arms and against the Managers of the Pub, Mr & Mrs Richardson, who occupied the pub as a licensee.
Juj v John Lewis Partnership (2023, CA)
OLA - occupier
= interesting example of the interplay between (i) the degree of an occupiers’ control and (ii) the extent of a defendant’s duties as an occupier.
Held: The Court of Appeal found that the judge at first instance was correct in all respects and in particular, that the defendant was an occupier to the extent of their limited degree of control over the premises, to put them under a duty of care towards visitors to the premises, and that duty extended only to reporting issues to the local authority.
The defendant had no responsibility for the design, construction and layout of the parking bay. Further, the kerb itself was not defective which countered any allegations relating to the repair or maintenance of the premise
The claimant attended the car park with his disabled wife. The claimant’s wife drove their vehicle and she parked the car in a marked disabled parking bay. The accident occurred when the claimant was returning to the vehicle. The claimant stated that, whilst he was putting his shopping away in the boot of the vehicle, he tripped on a kerb, which adjoined the disabled parking bay, and fell. In falling, he hit his head, suffering physical injuries including a traumatic brain injury with long term consequences.
It was the local authority who collected the car park revenue, maintained the car park, and erected the relevant signage. For reasons unknown to the defendant, the claimant did not issue proceedings against the local authority and the case proceeded to a trial solely against the defendant.
The defendant had no licence relating to, or other legal interest in, the car park. The car park was shared with other local users of the high street and was not exclusively for the defendant’s use. The defendant refunded its customers for up to two hours car parking. Its branding was displayed in and around the perimeter of the car park and, from time to time, they would notify the local authority of any problems with the car park including requests for routine maintenance.
It was the claimant’s case that the defendant was an occupier of the car park under the OLA and the defendant had breached its duty of care in numerous respects.
At first instance, the trial judge found that:
The accident was caused by the claimant catching his foot on the face of the kerb.
Although the defendant had sufficient control to be an occupier of the car park, that control was limited to dealing with immediate hazards within it and reporting matters to the local authority. It was not entitled to, nor required to, paint the kerb or prevent the use of any particular bay, including the one in question. Neither was it entitled to nor required to make any long term or structural changes to the car park.
The unique design of the parking bay, including the presence of the kerb immediately to the left of it, did present a danger for the class of visitors using that bay, namely the disabled, in breach of Section 2(2) of the OLA.
The kerb itself was not defective.
However, the claimant was fully aware of the presence of the kerb, and his injury arose from what was, simply, a true accident. There was nothing that the defendant had done, or failed to have done, which caused the injury
Martin v Martin-Baker Engineering (1983)
OLA - occupier - control
Held : A contractor may be an occupier => Building site contractor firm, defendants and the firm both occupiers when C came and fell and injured himself.
occupier has not taken such steps to ensure the independent ontractor’s work was proper as they could have cleaned up, the occupier could not rely upon the statutory escape hatch
Rubbish laying around on construction site, Martin fell over.
Ferguson v Walsh (1987, HL)
OLA - occupier/control
In Ferguson v Welsh [1987] 1 WLR 1553 a majority of the House of Lords held that an occupier, whether under the Act or at common law, was not normally required to inspect work done by an independent demolition contractor to check whether a safe system of work was in place.
Held: D was not liable. 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 on previous occasions, there was no evidence that the Council were aware of this.
nota bene: C may not be a visitor for all occupiers :
Facts: District Council (D) contracted Spence for work
Despite an express condition on the tender that subcontracting is not permitted unless the Council gives permission, Spence hired Welsh to do the actual demolition. Ferguson (C), an employee of Welsh was injured due to unsafe demolition work when a wall collapsed on him
C sued D under the Occupier’s Liability Act 1957
Harris v Birkenhead Corporation (1976, CA)
OLA occupier - control
Held:
The Court of Appeal held that the council were occupiers.
Despite not taking possession of the premises, they had the legal right of control. The council was best equipped to try and prevent such incidents.
Facts:
The local council issued a compulsory purchase order on a house.
The order allowed them to take possession two weeks later.
The residents moved out but the premises were not secure.
A child was injured after entering the unsecured house and falling out of an upstairs window.
Shtern v Cummings (2014, UKPC)
OLA - occupier - control
Held: The Privy Council upheld the decision of the Jamaican Court of Appeal. While the second defendant owned the land on which the hotel sat, she had no operational control of the hotel. The company possessed the fridge and the hotel, and had control over the area in question.
This Case is Authority For…
Ownership of land may not be enough to constitute occupation if another person has exclusive operational control over the part of the land where the accident took place.
The claimant was a tourist staying at a Jamaican hotel. She was electrocuted and injured opening a fridge within the hotel. She issued proceedings against three defendants in occupier’s liability.
The first defendant, a company, ran the hotel. The second defendant owned the land on which the hotel sat and was the controlling shareholder and director of the first defendant. She lived on the land, but in a house rather than in the hotel itself. She also bought the fridge in question. The third defendant was the hotel manager, who died before trial.
The Jamaican Court of Appeal held that the first defendant was liable, but that the second defendant could not be liable as she was not the occupier of the hotel.
Pearson v Coleman Bros (1948, CA)
OLA - visitor - 1957 Act
Held: Therefore the court held her to be a lawful visitor and the occupier was liable for her injury.
Principle: Child searching for a toilet still an invitee. Might have been different if you have been wandering out of curiosity or forbidden from entering a room.
A child was attacked by a circus animal when she found her way into the animal enclosure zhile looking for the bathroom. Although she shouldn’t have been in the enclosure there were no signs or notices telling her that she did not have permission to enter.
Geary v J D Wetherspoon (2011, HC):
OLA - Visitor - 1957 Act
C’s claim was rejected.
Principle:
This case is an illustrative application of the defence of voluntary assumption of risk (volenti non fit injuria) to occupier’s liability and the principle laid down in Tomlinson v Congleton BC [2004] 1 AC 46 that no duty is owed for obvious and inherent risks on premises.
No duty is owed to a visitor for using the premises in a dangerous, non-ordinary way.
Facts: C slid down the banister of a staircase and fell four meters, suffering severe injuries. C claimed for her injuries under the OLA 1957.
Kolasa v Ealing Hospital NHS Trust (2015, HC)
OLA - Visitor - 1957 Act
‘…although when the Claimant was brought to the hospital and was put to wait in A&E he was a visitor to the hospital and was owed the common duty of care under section 2(2) of the 1957 Act, his act of climbing over the wall was not an act covered by his general permission to be on the site as a patient nor was it part of the permission given by the Defendant to patients leaving the site after, or even without, treatment. He was, therefore, no longer an invitee or visitor but a trespasser.’
The Court concluded that the Claimant willingly left the hospital and walked outside, where he deliberately climbed over the wall and dropped to the ground. As such, it was held that he was not a lawful visitor at the time of the accident. The court went on to conclude that the Trust did not breach its duty under the 1957 Act and climbing over the wall was not an action covered by the general permission to be on site as a patient. He had therefore become a trespasser and the duties set out in the 1984 Act applied.
The Court founds that the perimeter wall and its drop did not represent an inherent danger; the area was well lit and the danger of the drop was obvious by day or night. As such, no warning signs were necessary. The retaining wall was of sufficient height, it was not in a defective state and did not need guarding. A handrail had been installed on top of the wall but this was to prevent people from sitting upon it, as it was near to a coffee shop. It was the activity of sitting on the wall that was unsafe, not the wall itself.
Although he was drunk, the Claimant had willingly accepted the risk of climbing over the wall and no duty was owed to him by the Trust. The accident was entirely his fault and the claim was dismissed.
The facts of the case are that the Claimant was intoxicated when he was brought into A&E. He discharged himself and sustained his injuries after he climbed over a wall outside the hospital and fell 30 feet to the ground. He brought a claim against the Defendant Trust under either the Occupier’s Liability Act 1957 as a lawful visitor or, in the alternative, the Occupier’s Liability Act 1984 if the Court concluded that he was a trespasser.
compare with Kolosa
Spearman v Royal Utd Bath NHS Trust (2017, HC)
OLA - Visitor - 1957 Act
Reasoning: The judge made some interesting observations on the key points:
- Visitor or trespasser — the claimant did not become a trespasser (so as to take him outside the scope of the Act) at the point he left the A & E department through the door. The door had no lock or warning sign and the claimant’s confused state of mind was relevant since it meant his actions were an honest mistake.
- Negligence — the “occupancy duties under the Act” (and relating to the state of the premises) were concurrent with other duties relevant to “the overall operation of the enterprise” which included the safe management of patients by restricting access to certain areas.
- Contributory negligence — the key issue here was the claimant’s decision to climb over the barrier. No reduction was made on the basis that to do so would be to penalise the claimant for being of a state of mind that did not allow him to appreciate the danger.
Quote: ‘A person’s state of mind and intention is an important additional factor. If a patient, who is a lawful visitor to a hospital (whether the Emergency Department or any other department) has finished his or her treatment and is leaving, he or she does not cease to be a visitor in general until they leave the hospital premises. The position may be different if they deliberately enter an area marked “no entry”, or “private” or know that they are entering a part of the hospital where they have no right to be. But if the patient simply makes a mistake and goes the wrong way, it could not possibly be suggested that such a person was now a trespasser. So here, intending to leave the Emergency Department, Mr Spearman, in his confused state of mind, thought (wrongly but honestly) that he needed to go upstairs to get out and, indeed, go over the barrier to get out. His belief meant that he remained a lawful visitor….’
Held: The defendant hospital was held liable for the claimant’s fall from a roof that he had accessed after walking out of the A & E department shortly after his arrival by ambulance.
The hospital was held to be negligent and in breach of the Occupiers’ Liability Act 1957 (“the Act”). This was largely on the basis that the doors providing access to the staircase and the roof were unsecured such that the premises were not reasonably safe for confused and vulnerable patients. The judge rejected the suggestion that the claimant had attempted suicide; rather, he held that in a confused state, the claimant was determined to leave the hospital (a setting he strongly disliked).
Fact: The claimant, aged 46, was diabetic and also had an acquired brain injury. From time to time he suffered hypoglycaemic attacks which would make him confused. After one such attack on 5 May 2011, he was taken to hospital by ambulance. Shortly after arriving, and in a fleeting moment when the nurse went to collect the appropriate forms, the claimant walked away. He passed through a number of doors and accessed a flat roof via stairwells. He then used furniture on the roof to climb over the 1.4m high barrier fencing and either jumped or fell, suffering serious injuries.
Snook v Manion (1982, DC)
OLA - visitor - revocation of permission
The occupier can revoke a visitor’s permission whilst the visitor is on the premises. However, in Snook v Mannion (1982) (HC) telling a police officer to ‘f**k off’ whilst being pursued up a private driveway was not sufficient to revoke the implied permission given to visitors approaching a house on legitimate business.
Edwards v London Borough of Sutton
OLA - visitor - occupancy or activity
The Court of Appeal, through Lord Justice McComb’s lead judgment found that the first instance judge had misdirected himself, with a failure in the original decision to recognise that under the 1957 Act it is necessary to first identify the relevant danger (if any) before being in a position to be able to do something about it. The Court noted that ornamental bridges are a common feature of many public gardens and are regularly traversed without difficulty. Whilst it was in theory possible for the low parapets of the wall to constitute a ‘danger’, this did not trigger a duty to take further steps (whether by installing railings or warning signs) for two reasons:
- The seriousness of the accident which had befallen the claimant could not be equated with there being a serious risk of it occurring in the first place – there had been no previous accidents of any kind and any risk, if it existed, was remote. The risk of injury could be regarded as minimal rather than serious;
- There was no duty to warn of obvious risks (in line with Staples v West Dorset [1995]) – the approach to the bridge was clear, and its width and the height of the parapets were obvious.
Facts: The claimant was pushing a bicycle over a small ornamental footbridge in a park owned and occupied by the London Borough of Sutton. The bridge was humped and had low parapet side. It was an old bridge and there had been no previous accidents. The claimant lost his balance and fell over the edge into the water below. As a result he sustained a serious spinal cord injury.
At first instance, the trial judge found that there was a breach of the Occupiers Liability Act 1957. Whilst there was no obligation on the defendant to update the bridge by installing new handrails (in circumstances where there had been no such obligations, standards, or requirements at the time the bridge was constructed) the judge held that there was a foreseeable risk of injury and therefore considered that there was an obligation to warn visitors as to the risks of the low parapets and/or to instruct them to take a different route through the park. Mr Edwards was however found contributorily negligent to the extent of 40%
Brown v South West Lakes Trust (2022, CA)
OLA - 1984
The fact that a car involuntarily left the road did not mean that the state of the premises created the relevant risk. It may be on my land but it is your behaviour that created.
Cunningham v Reading FC (1991, HC)
OLA - occupancy vs activity
Rogue Bristol City fans on the rampage was occupancy and not activity.
NB: the Act was engaged because it was
something to do with the stadium.
Fundamentally connected to the land is enough even if you are talking about the
behaviour of a third party. State of the stadium was integral to the activities of the third party and the occupier knew about it.
C sued when he was injured by fans of Reading FC ripping up chunks of the crumbling stadium and hurdling them at opposing fans.
Cook v Swansea City Council (2017, CA)
OLA - 1957 - duty of care
Reasoning: Balancing exercise:
- likelihood of injury- The risk of ice in cold weather was an obvious danger and people could be reasonably expected to watch out for it and take care. The car park did not pose a particular risk compared to any of the other local authority car parks. There had been no previous reports of dangerous ice conditions at the car park nor any previous accidents due to ice (para.35).
- seriousness of injury that might occur- Injury due to slipping could be trivial or serious (para.35).
- social value of the activity giving rise to the risk- The local authority’s car parks provided 24-hour parking. If unmanned car parks had to be gritted whenever icy conditions were reported, the local authority was likely to have to prohibit the use of all unmanned car parks in periods of adverse weather, to the inconvenience of local residents and visitors (para.35).
- cost of preventative measures- The alternative to closing the car parks would be to man them or arrange regular gritting. Such gritting would have to be by hand and would involve significant use of staff and material resources. That would constitute a disproportionate and costly reaction to the risk and would divert from situations where attention was more urgently required (para.35).
⇒ The assessment provided compelling reasons for upholding the judge’s decision that there was no breach of duty (para.35).
HeldAppeal dismissed.
Did the judge find that there was a breach of duty under s.2(2)?No. Section 2(2) required the local authority to take reasonable care to ensure that visitors would be reasonably safe when using the car park. It was reasonably plain from the judgment that the judge had found that it had not breached that duty. He first asked whether a reactive system was sufficient to discharge the duty, and then made an express finding that the local authority had discharged its duty of care. The judge had gone on to say that the system could have included giving instructions to wardens and cashiers, but he did not state anywhere that it should have been done or that failing to do so involved a breach of duty. The judge had stated that there would “prima facie” be no difficulty in implementing a system requiring wardens and cashiers to report icy conditions, but that was not a final or definitive conclusion on the issue, which had been only partly explored on the evidence
If so, was the judge wrong to find that there was no breach of duty?No. There was much force in the local authority’s arguments at trial as to why it would be unreasonable in all the circumstances to impose a duty of care that would effectively require it to grit its unmanned car parks whenever icy conditions were reported.A balancing exercise was to be carried out when considering what amounted to “such care as in all the circumstances of the case is reasonable” in s.2. That exercise involved an assessment of the likelihood that someone might be injured, the seriousness of any injury that might occur, the social value of the activity giving rise to the risk and the cost of preventative measures. There was generally no duty to protect against obvious dangers, Tomlinson v Congleton BC 2003 applied.
The appellant (C) appealed against the dismissal of his claim against the respondent local authority for damages in negligence and/or breach of duty under theOccupiers’ Liability Act 1957 s.2(2). C had slipped and fallen on ice in an unmanned car park that was owned and operated by the local authority. In bad weather, the local authority did not grit unmanned car parks. At trial, the judge found that the local authority operated a reactive system of gritting them upon receiving a report from a member of the public about a dangerous area. He found that the system was appropriate in the context of the case. He rejected C’s argument that the accident would have been prevented if there had been a system in place whereby local authority employees who visited the unmanned car park during the day to collect money from the ticket machines (cashiers) and to check tickets (wardens) reported icy conditions. Also in relation to causation the judge found that there was no evidential burden on the local authority to show that the accident would have happened in any event. C argued that the judge failed to make a clear and explicit finding on breach of duty under s.2(2).
Maguire v Sefton BC (2006, CA
system of inspection - OLA 1987
HELD: This wasn’t sufficient, found breach.
warranty given by occupier to take care did not cover independent contractor- entitle council to consider they had fulfilled- DoC per s5 OLA same as ordinary duty per s2
Exercise machines inspected, but malfunctioned- visitor injured. D had not gone through with the proactive inspection system they had in place, instead they allowed a third party to come and inspect their gym equipment.
Darby v The National Trust (2001, CA)
OLA 1957 - knowledge of the risk
D is not liable under the OLA 1957. No duty to warn abt obvious risks.
Warnings: s 2(4)(a) ‘enough to enable the visitor to be reasonably safe’
Facts: A man drowned while swimming in a deep and murky pond on D’s property
His wife sued under the Occupiers Liability Act 1957 (OLA 1957) on basis that:
signs stating ‘no swimming’ should have been erected; and
the risk of Weil’s disease (a form of bacterial infection) from entering the pond required warning notices, had they been present her husband would not have swam
Simms v Leigh Rugby Club (1969 HC)
OLA 1957 - knowledge of the risk
Under s2(5) OLA 1957, liability is absolved since C must be taken to have willingly accepted the risk of playing on the field.
NB: the risk must be foreseeabl but that its not automaticalaly enough. (too improbable to qualify for breach)
Facts: D was the football club occupying the football ground
C was a member of a visiting team
C was tackled into a concrete wall alongside the touchline, breaking his leg.
Rochester Cathedral v Debell (2016, CA)
OLA 1957 - knowledge of the risk
Outcome: Not Liable
Legal principle: The common duty of care in occupiers’ liability extends to requiring occupiers to remove dangers which have materialised, even though the occupier did not cause them. This case involved tripping along a pathway. Tripping, slipping and falling are everyday occurrences on the roads and pavements. No highway authority or occupier of premises like the Cathedral in this case could possibly ensure that the roads or the precincts around a building were maintained in a pristine state.
Cost of prevention clearly relevant: ‘There is no recognition in the judgment that not all foreseeable risks give rise to the duty to take remedial action. The judge had to apply the concept of reasonable foreseeability taking a practical and realistic approach to the kind of dangers which the Cathedral were obliged to remedy. Had he done that, I do not think that he could have reached the decision he did.’ Per Elias LJ
Facts: The claimant and his wife were walking within the precinct of Rochester Cathedral. The claimant passed through a gap between a wall and a bollard and fell over concrete which was raised around one inch above the road surface, following an earlier collision with a car. The claimant suffered a shoulder injury and hernia, his wife had passed through uninjured immediately before.
Pollock v Cahill (2015, HC)
OLA 1957 - standard - vulnerability
Reasoning:
The Judge then had to consider s.2 of the Occupier’s Liability Act 1957, the relevant passage of which is:
(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.
(3) Circumstances relevant for the present purposes include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases:
(a) an occupier must be prepared for children to be less careful than adults; and
(b) an occupier may expect that a person in the exercise of his calling, will appreciate and guard against any specialrisks ordinarily incident to it, so far as the occupier leaves him free to do so.
The Judge concluded that the reference in paragraph 3 to “such a visitor” requires an occupier to have specific regard to any known vulnerability of the particular visitor in question. Here, had the Claimant been fully sighted, the open window would not have made the premises unsafe. It was the fact that he was blind that made them unsafe. It was no defence that the Defendants claimed not to have appreciated the risk of leaving the window open; they ought to have appreciated the risk and kept the window closed, or at least warned the Claimant about it.
Contributory negligence arguments, on the basis that the Claimant ought to have asked the Defendants about the position of the window, and used his bed as a guide to the door, were rejected. The Claimant succeeded on liability in full.
Held: In favour of the claimant.
The duty of care under s2 of the Occupiers’ Liability Act requires occupiers to have regard to any known vulnerability of the visitor. Although the window was not dangerous per se, it did create an obvious risk for a blind man. The Defendants, as occupiers, had underestimated that risk and should have either closed the window or warned the Claimant of its presence and the extent of the drop below.
The Court found that the open window had been a real risk to the Claimant; the occupiers had created that risk; and they ought to have appreciated the risk and taken steps to prevent it, by keeping the window closed or by warning the Claimant about it, with particular reference to the extent of the drop from the window
Facts:
The Claimant fell from an open second floor bedroom window at the home of his friends, the Defendants. He sustained severe head and spinal injuries. Claimant was already totally blind. He had no recollection of the incident. One of the Defendants had left the window open when making up the bedroom.
English Heritage v Taylor (2016, CA)
OLA 1957 - risk of defensive practice
Risk of ‘defensive’ practice not decisive
Outcome: Liable.
Legal principle: The sheer drop was an obvious danger and the defendant should have taken reasonable steps to protect visitors to the premises. English Heritage were in breach of their duty by failing to provide an adequate warning sign. Contributory negligence of 50% was applied due to the claimant walking on an informal path.
Facts: The claimant was visiting an English Heritage site; he was walking along a grass slope when he fell off the slope and into a dry moat causing serious injuries. There was no warning sign of the 12ft drop down to the moat.
James v White Lion Hotel (2021, EWCA)
OLA 1957 - If C behaved stupidly doesn’t rule out BoD, if Act is engaged
Holding: in the White Lion case the Court of Appeal drew a distinction between cases where there is no duty to warn of an obvious risk inherent in activities carried out on the Defendant’s land, such as hang gliding, or swimming in or diving into pools, and the duty owed to a particular visitor to a hotel who is in a “home from home” situation. The Court felt that hoteliers should be aware that guests could be off guard and might drink alcohol and/or open windows to smoke.
Facts: On 5 July 2015 the deceased was a guest at the Defendant’s hotel. Whilst sitting on the windowsill in his room and leaning out of the sash window the deceased fell two stories to his death.
The Defendant relied on a line of cases including Tomlinson v Congleton BC, Edwards v Sutton BC and Geary v JD Wetherspoon, where the Court had concluded that the hazards of which the Claimants were complaining were so obvious that no remedial steps by the occupiers needed to be taken.
