occupiers liability Flashcards
(22 cards)
facts of stevenson v glasgow corp
a young child went to the park and drowned in the nearby river.
there was no railing or fencing
stevenson - argument of defendants
the accident was caused by the fault of the father for allowing “to go unattended by some person taking care og him, to said park”
held in stevenson
- corporation are bound to take all necessary precuations that they shall be able to play in safety
- whethet there was special circumstances for children who they would know would be unattened
it was a fmailair feature, not necessary to put up a fence to prevent children or careless persons from falling in
commonsense to not need fencing
-there was nothing unlawful in the creation of the pond.
impossible to lay upon defenders a duty to protect children from risks which arose only from their childishness and helplessness
Lord Kinnear
whether the negligence led to grounds for liability was a question for the court
Lord Mackenzie
less obligation to fence a natural stream then there is to fence an artificial pond. no obligation because the danger is an obvious one. If too young to look after themselves shouldn’t have been left to go to the park themselves.
facts of graham v east of scotland water authority
man drowned in river after being driven home and walking the last bit
discussion of the danger in graham
there had been no averrement that an accident like this had happened before
not suggested that the alleged danger was unusual or concealed, or unfamiliar to an adult like the deceased.
argument of the pursuer in graham
no real averments to show how or on what surface the deceased allegedly lost their footing, or any causal connection between the death and the alleged danger
argued the defendant ought to have known the situation was one which would cause injury particularly at night. therefore it was their duty to provide a fence.
argument of the defendants in graham
maintained that occupeirs of land owned no duty to erect fences foe the protection of visitors against permenant and obvious features of the environment.
held in graham
it was going too far to suggest that the duty to fence off danger applied to the combination of permenant, ordinary and familiar features of the landscape such as relied on byt the pursuer in the instant action.
drawing a rigid distinction betweena rtificial and natural was difficult, as in cases such as stevenson artificial was held to be within the rule
the ambit of occupiers duty had to be considered a fresh in every case
the fact the defendant was intoxicated was not of material consideration
the danger falls within the intended scope of the authorities concerning obvious dangers on land, against which no duty to fence is in law incumbent on the occupier.
what does graham say on obviousness
the abstract concept of obviousnes is not per se a satisfactory test in this area of law
in earlier authorities it has been used to denote features of the environement which are permenant ordinary and familiar
natural landscape features plainly fall into the category, the same applies to longstanding artificial features which are not concealed or unusual.
facts of fegan
she fell over a cliff near thurso
sheriff held in fegan
there was no duty on the defenders to protect against natural and obvious dangers, there was no duty to fence
how would the duty have been fulfilled in fegan
if there had been a duty which the courts did not believe there was the would have been fulfilled by putting up fences
argument of the pursuer in fegan
the pursuer argued that if there had been a barrier then it would have stopped her from falling regardless of the mechanics of the accident
the courts were not satidfied that the pursuer had prived on the balance of probabilities what caused her to fall from the cliffs
argument of the defendants in fegan
claimed that if there to be a requirment for them to put up fencing there needs to be special circumstances giving rise to a special risk
the authoirty used in fegan
looked at stevenson and taylor
- not required to take precautions agaisnt obvious dangers
don’t consider tomlinson adds anything to the positions
didn’t accept the evidence of the professional safety witness that the law had changed.
what was held in fegan
unable to accept that the combined circumstances of the location of the seat, which would obviously attract people to sit on it, removed from the edge of the cliff by some distance surrounded by mown grass which in itself did not pose any danger, do not amount to a special risk or circumstnaces of special danger, requiring the local authority and applying its mind to exercise reaosnable care in this case to take any precautions at this locations
fencing would be intrusive and objectionable
issues in cowan
- whether accident occured in the manner avvered
- natural and obvious danger in respect of which a duty was owed
- if inadquate what steps ought the defender to have reaosnably taken
steps by the ranger enough
held in cowan
haha fails to be disitnguished from natural - was unusual of concealed nature
brining members onto prop int the dark was fairly unusual behaviour
unreasonable and unrelasitic for a fence to be errected
duty would have been met by giving clear instructions
Leonard v lochlomond and the trossachs national park authoirty
both paths constructed to the same standard
handrails placed when georgraphy indicates they are required
presence of a handrail would not have affected the outcome
boyd v lanarkshire - must establish on the balance of probabilities
mo auhtority to protect children from such risks
became a permenant and ordinary feature so no duty owed.
mckevitt
not an obvious danger like certain features of the landscape
would have been noticeable to someone paying attention
the risk only arose in certain circumstances
needs to be 2 aspects for obiousness
1. physically obvious and that it presents a danger
if all the circumstances came together they should have anticipated it
did not show there was a duty incumbent on the defender.
