Occupiers' Liability Flashcards

Question

III - What risks is an occupier responsible for? A – Activity vs Occupancy Keown v Coventry Healthcare NHS Trust [2006] Facts/Held

Answer 1

Facts: C, aged 11, climbed the underside of a fire escape owned by D, and fell, suffering injuries. That area of the hospital was known as a place children liked to play. C sued under the 1984 Act, arguing that the fire escape constituted an allurement to children and that the hospital was aware of the danger. Held (CoA): - The threshold requirement [in the 1984 Act, but same in the 1957 Act] is not whether there was a risk of suffering injury by reason of the state of the premises, but whether there was a risk of injury by reason of any danger due to the state of the premises o A fire escape is not inherently dangerous, so that if one chose to create a danger by climbing it improperly, knowing it was dangerous to do so, any danger was due to such person’s activity and not the state of the premises - In general the age of C is not relevant but it is a question of fact and degree whether premises that were not dangerous from the POV of an adult could be dangerous for a child o C was aware that there was a risk of falling and that his actions were dangerous and that he should not have been climbing; thus - Thus, no risk arose out of the fire escape

Answer 2

- Longmore LJ: o In Tomlinson a point central to the appeal was that C was a person of full capacity who voluntarily engaged in an activity which had an inherent risk (Lord Hoffmann). Does it make a difference that the C in this case is a child? o Premises which are not dangerous from the point of view of an adult can be dangerous for a child but it must be a question of fact and degree: ♣ A duty to protect against obvious risks exists only in cases where there was no genuine and informed choice as in the case of some lack of capacity (ex. inability of children to recognize danger) (Lord Hoffmann) [NB this is in the case of the 1984 Act – in the 1957 Act there would be a duty but it can be discharged by doing nothing] ♣ Thus injury suffered by a toddler crawling into a derelict house could be due to a danger due to the state of the premises where an adult in the same circumstances might not be ♣ However, one cannot ignore a child’s choice to indulge in a dangerous activity in every case merely because he was a child; in this case C appreciated that there was a risk of falling and that he should not have been climbing the fire escape o Thus, it cannot be said that C did not recognize the danger; the risk did not arise out of the state of the premises but out of what C chose to do

Answer 3

- Lord Hoffmann: o Judge: Because the risk of diving into a lake where it is shallow is “obvious”, there is no duty to warn against the danger nor do anything else. Even if the duty is owed under the 1957 Act D would not have been obliged to do more. o Lord Hoffmann: the CoA’s approach that if there was a foreseeable risk of serious injury D was under a duty to do what was necessary to prevent it, is an over-simplification – “such care as in all circumstances of the case is reasonable” (whether under the 1984 or 1957 Act) depends, as in negligence, on not only the likelihood of injury but also the social value of the activity that gives rise to the risk and the cost of preventative measures – these must be balanced against each other (cites Bolton v Stone: no duty because socially useful activity, even though injury was foreseeable) o In the 1957 Act we start with the assumption that there is a duty whereas in the 1984 Act we start from the assumption that there is none, but in both cases the result is the same. o The balance under the 1957 Act: ♣ Suppose (putting it the most widely possible though Lord Hoffmann would have put it more narrowly like the judge) the relevant risk is any kind of water accident. ♣ There is some risk: 450 people drown while swimming in the UK every year and 25-35 break their necks diving ♣ Costs of taking preventative measures: the financial cost (5000 pounds) might not have been excessive, but this is not significant in the balance because the social value of activities that would have to be prohibited to eliminate the risk of swimming, and the consideration that the council should be entitled to allow people of full capacity to decide for themselves whether to take the risk are much more significant. ♣ There is an important question of freedom at stake: it is unjust that the harmless recreation of many would have to be prevented in order to comply with an alleged legal duty to safeguard irresponsible visitors against dangers that are perfectly obvious - Lord Hutton [expressly in relation to the 1984 Act but perhaps also applicable, if we apply Lord Hoffmann’s dicta, to the 1957 Act to show what is necessary to discharge the duty?]: o In exceptional cases a claimant might be able to establish that the risk arising from some natural feature on the land (that is obvious and not latent) was such that the occupier might reasonably be expected to offer him some protection against it, for example, where there was a very narrow and slippery path with a camber beside the edge of a cliff from which a number of persons had fallen.

Answer 4

Facts: C visited a climbing wall operated by D, who operated by providing suitable premises and equipment and then leaving it to those who used them to do so sensibly without supervision. Rules were displayed on a board outside, including not jumping from walls (though it should have been more prominent). C tried to jump from wall to wall and fell, suffering injuries. Trial judge held that D owed a duty to warn C that the thick mats did not make the climbing wall safe, but might encourage a belief that it did (though apportioned liability at 25% for contributory negligence). Held (allowing D’s appeal): - The risk of jumping from the wall was plainly obvious, and it was also obvious that no amount of matting would avoid absolutely the risk of severe injury from an awkward fall (which was an obvious and inherent risk of climbing). - The law did not require D to prevent C from undertaking the activity (with its inherent risks), nor to train or supervise him, and it made no difference that the rules could have been made more prominent.

Answer 5

Facts: C used an exercise machine manufactured by D2 on the premises of D1, whose pedal failed suddenly and threw him backwards off the machine. Sued D2 for negligence and D1 for liability under the 1957 Act. Held: Since C paid a fee to use the equipment, he was a visitor, and D1 owed a duty of care under the 1957 Act to ensure that all exercise equipment were safe. However, D1 had hired an independent contractor to examine the equipment six weeks previously – because they employed the best experts in relation to the machine, they discharged their duty under the OLA and the deficiency of D2’s inspection (he didn’t open up the machine while he should have) did not also render D1 liable.

Answer 6

- Rix LJ: o It was common ground that the IC was a competent IC for the purpose of inspecting and maintaining the equipment – indeed the IC was the manufacturer and supplier of this equipment and there can be no more suitable o Generally speaking the equipment was robust and maintenance light – there was no evidence that any such machine had ever failed before by reason of the defect in this case o D was entitled to rely on the IC to perform a proper inspection ♣ Argued that D was not entitled to so rely because the IC was doing the inspection for their own interests (it was a pre-contractual inspection) and so could not be at risk of being liable to any subsequent user injured by reason of a negligent inspection, but IJO this is wrong because the IC knew that the machine would no longer be examined for a very long time ♣ D, on the other hand, was entitled to consider that they were employing the best of all experts in relation to the machines, and were taking proper steps by reason of entering into the maintenance contract and by taking the pre-contractual inspection.

Answer 7

Facts: D1 hired a splat wall from D2, an IC selected from the phone book. D1 paid D2 an extra 100 pounds to provide staff for the splat-wall so that D1 would benefit from D2’s public liability insurance. C injured while using the splat wall because of the negligent set up of the wall by D2, whose public liability insurance had expired 4 days prior. C claimed that D1 owed and breached his duty to take reasonable care in selecting persons responsible for operating equipment at the fair, including that they were covered by public liability insurance. Held: - D1 was an occupier so owed a common duty of care under OLA 1957, and in order to discharge that duty, he was under an obligation to inquire into the insurance position of D2 so as to confirm his suitability for operating the splat wall - Since members of the public had been invited to take part in inherently risky activities, which D1 chose to have organized by an IC, it was fair, just and reasonable to impose a duty on D1 to choose an IC who could properly meet any potential liability - But this duty was fulfilled because D1 did inquire into D2s insurance, and it would be unreasonable to expect it to have checked the policy document Per Sedley LJ: to construe D1’s duty as embracing a duty to ensure that visitors are reasonably safe from the consequences of a third party being uninsured is unprecedented and a jump across a factual and logical gap capable of triggering uncovenanted and unpredictable movements; in the absence of further information about its potential social and economic consequences, such a shift does not pass the test of being fair, just and reasonable. Lord Woolf: - S2(4)(b) is not concerned with whether a duty is owed but whether it has been discharged. It can only apply here by analogy (because the case doesn’t concern construction/maintenance/repair) but IJO there is no doubt that D1 could fulfill its duty by employing an appropriate, competent, independent contractor, but it must take the steps that it should to satisfy itself that the IC was competent, taking into account the nature of the task, which involves in this case ensuring that the IC was sufficiently experienced and reliable to be entrusted with ensuring that members of the public would be reasonably safe during a splat-wall (but this was satisfied by inquiring into D2’s insurance policy, though not examining it).

Answer 8

Facts: C suffered injury on being ejected from D’s nightclub by a door attendant. D had employed an IC to handle security at the club and the attendant was the IC’s employee. The IC had no public liability insurance. C argued that D owed him a duty to ensure that the IC was insured, and breached that duty. Held: - Save in special circumstances, there was no free-standing duty on an employer to satisfy himself that his independent contractor had insurance cover, or would be able meet a potential claim - The IC had provided employees who were licensed and approved by the local Pub and Watch Committee, and had been working for D for some 18 months prior to the accident and, in that time, nothing had occurred to raise questions about his competence.

Answer 9

Latham LJ: in the context of s2(4)(b) the question is whether D has met his obligation by employing an IC – it relates to the ability of that IC to ensure the safety of A’s visitors. D has no obligation to be insured or to be capable of meeting any liabilities that may arise – he cannot have a greater liability in regard to insurance merely because he employs an independent contractor. As such wrong to approach the matter by imposing a duty on D to ensure the IC was insured, but the question still remains as to whether there is an obligation to check the IC’s insurance position because this is necessary to assessing the IC’s competence. This case is distinguishable from Gwilliam: in that case the IC was carrying out a one-time operation – the D there had no experience with the contractor, obtaining the name from a phone book. In those circumstances a check on insurance might have been a bearing on the assessment of whether the contractor was competent, but here the position was different. The IC provided licensed employees, and D had a significant period of time to assess the IC’s competence. Neuberger LJ: save in exceptional circumstances, the law does not cast a free standing duty on an employer to satisfy himself that his independent contractor has insurance cover or would otherwise be good for a claim. An employer may fulfill his duty to satisfy himself that the IC is suitable for the task, but he has no duty to do so. This position is not undermined in Gwilliam – there, D1 asked about insurance, so it is natural that discussion focused on that point.

Answer 10

A boiler expert stated that the boiler room was dangerous and ordered everyone out, but chimney sweeps stated that they knew better than he did and ignored his order, entering the room, and he removed them by force. Later, he issued another warning that it was still unsafe, but the sweeps went in anyway and didn’t complete the work, saying that they would come back on Saturday but actually coming back the same night, and both died. Trial judge held the occupiers liable under the 1957 Act but apportioned liability at 50% for contributory negligence. Held (CoA, Pearson LJ dissenting): - The warning was in all circumstances enough to enable the sweeps to be reasonably safe within s2(4)(a) Per Lord Denning: there would be no duty at any rate in regard to the dangers that caused their deaths because a householder by calling in a specialist to deal with defective installations, can reasonably expect the specialist to appreciate and guard against dangers arising from the defect (though things would be different if the danger was, ex. broken stairs). [Then says that even if he is wrong that no duty was owed, D had sufficiently discharged the duty by virtue of s2(4)(a)]

Answer 11

Facts: There was a shortcut that C, employee of D2, used to get to her place of work. Employees had used it for at least 20 years with the knowledge of D2 and D1 who never objected to it. D1 posted notices at various points over the estate, one in particular was on the private road at a point visible to those using the shortcut. The notice said the road was private property and that all persons using it were there at their own risk and should have no claim against the first defendants for any injury or damage caused to them, whether due to the first defendants' negligence or breach of duty. C got injured by being knocked down by railway trucks (driven negligently by employees of D1) one time when using the shortcut. She admitted that she read the first few lines of the notice and could have read the rest of it. Held: - C came onto D’s land as a licensee under conditions contained in the notice, all of which were binding upon her though she had only read part of them, and that this was adequate to absolve D1 from liability for their negligence - D2 had provided C with a reasonably safe way of reaching her work, that the dangers involved in crossing railway lines were patent and D2 were under no duty to warn her of the particular danger in question which they could not reasonably foresee

Answer 12

- On incorporation/attachment: if the conditions had been brought sufficiently to the notice of the plaintiff he would not have succeeded in his claim. In the present case the conditions were brought sufficiently to the notice of the plaintiff. She read part of the notice: she might have read all of it. She knew she went on to the land at her own risk. - On interpretation: It is primarily directed to the "nature condition and state" of the property, but the word "property" is followed by the words "with everything thereon as he finds it." There were railway lines and trucks upon the property, and shunting took place, as the plaintiff knew. She took the risk of an engine or a truck being in her way. and by later words in the notice she could not have a claim against the occupiers for injury or damage howsoever occasioned whether it was in any way whatsoever due to any negligent act, default or omission on the part of the defendants or their servants. These are wide words. I am unable to read them as applicable only to the static condition of the property: the presence of the lines of railway is sufficient to indicate that there will at times be movement of engines and trucks upon them, and the plaintiff knew that from the first time she went upon the property. In these circumstances, I cannot see that it is right to read the words "howsoever such injury and damage may be occasioned" as limited to the condition of the ground. I should feel more difficulty if we had to consider a claim arising from negligence in the driving by the defendants' servants of a motor-car and damage arising therefrom. The danger arising from shunting operations was one which must have been present to the mind of everyone who went upon the property.

Answer 13

Volenti only applies to risks that C willingly took and accepted, and does not extend to risks that he wasn’t aware of, such as those caused by negligence of the other pary. With regards to exclusion of liability, duty rests on whether sufficient steps have been taken to warn C of the exclusion and risks. Facts: C, racer, killed in a Jalopy race because the ropes were negligently constructed. Notices warning the public of the danger of motor racing were displayed which stated that “it was a condition of admission that the organisers were absolved from all liabilities from accidents "howsoever caused" to spectators”. C came with his family and paid entrance for his family, and was allowed in free as a competitor. He was given programmes with a warning in small print on the inside page. After his race, he rejoined his family in the spectators’ enclosure to watch other races, during which he was killed by a negligently constructed rope. C sued the owners and D defended with 1) volenti and 2) exclusion of liability. Held (CoA): - C did not know of the risk caused by D’s failure to take proper safety precautions volenti does not apply - At the time of the accident C was a spectator and since D, by the use of the words “howsoever caused” on the warning excluded their liability for accidents arising from their breach of duty of care, as they were entitled to do by s2(1) OLS 1957. Thus the claim failed (Lord Denning dissenting) NB in this case: - The notice said “WARNING” but was actually an exclusion (“you are present entirely at your own risk”; “it is a condition of admission, that all persons … are absolved from all liabilities arising out of accidents … howsoever caused”)

Answer 14

Lord Denning MR (DISSENTING): - S2(5) of the act accepts doctrine of volenti non fit injuria, but competitors can expect organizers to do all that is reasonable to ensure safety of competitors. Thus, organizer cannot invoke volenti for its own negligence - Was there exclusion “by agreement or otherwise”? o Agreement: ♣ By entering as a racer (he had an old programme which contained some warning that competitors entering the race did so at their own risk) no because he did not read it and it was not pointed out to him, and even if it were it would only exclude liability if he were hurt during the races and did not exempt the occupiers from liability for their own negligence ♣ Condition on the programme (equivalent to a ticket, because the programme says on the front page “Admission by programme”) in the inside page in small print applying ticket cases, this is insufficient because a ticket must say on its face, “For conditions, see back”. ♣ The “Warning to the Public” at the entrance no because it was not part of the contract, which was in the programme – it was not incorporated into the programme by reference or otherwise. C saw the notice and appreciated that it was a warning notice with some conditions, but he did not read it and did not know the precise terms of the condition; he is not to be bound. o Or otherwise: ♣ The Warning? No because in the absence of contract, the organisers of a sports meeting cannot get out of their responsibilities by putting up warning notices. It would be intolerable if they could do so. There is no statutory regulation to provide for safety, so the answer must be the common law duty on organizers to take proper precautions. ♣ D tried to rely on Ashdown v Samuel Williams, but this doesn’t apply to situations where C entered by contract – the exemption must rest on contract

Answer 15

- The liability of the organisers to competitor: C, when engaged in the role of a competitor, accepted all the risks inherent in the sport of jalopy racing. The organisers owed no duty to him to protect him against those risks. - As a spectator, such a visitor was, I think, subject to the condition set out in the warning notice. At the time when the accident occurred the deceased was, in my opinion, a spectator. The limitation on the liability of the organisers in these circumstances is to be found in the notice. The condition set out in the notice was that they were to be absolved from all liabilities arising out of accidents causing damage or personal injury howsoever caused. The use of the words "howsoever caused" makes clear that the absolution was intended to be of a general character. The effect of the condition must, in my judgment, amount to the exclusion of liability for accidents arising from the organisers' own negligence. For these reasons I consider that the judge was right in dismissing the action. This makes it unnecessary for me to consider the effect of the warning notice which was printed on the inner face of the programm

Answer 16

NB Roderick thinks that the differences (property damage aside) is ideological (i.e. that people would be uncomfortable with the idea that the law affords the same protection to visitors as it does to non-visitors), but that practical differences between the two Acts are more apparent than real. Indeed, Roderick thinks that (even under the 1957 Act), a visitor will not be able to sue for a dangerous feature x if either: - D did not know and had no reason to know about x [MI because there would be no breach? What can you reasonably be expected to do about a danger that you had no reason to know about?] or - D knew about x but had no reason to suppose that someone like C would go near it [MI because you can expect people to be careful?] or - D did know about x but it would be unreasonable to expect him to do anything to protect D against being harmed by x [MI the balancing of benefit/cost in Tomlinson?]

Answer 17

a. Occupier? b. Premises? c. Trespasser or otherwise covered by the 1984 Act? i. A person entering any premises in exercise of rights conferred by the Countryside and Rights of Way Act 2000 or the National Parks and Access to the Countryside Act 1949 (s1(4) OLA 1959) 1. BUT in case of CRWA 2000: the occupier will not owe C a duty to protect them against a risk resulting from the existence of any natural feature of the landscape, or any river, stream, ditch or pond, or a risk when passing over/under/through any wall except by proper use of the gate unless D intentionally or recklessly created that risk (s1(6A) OLA 1984) 2. PLUS if D does owe C a duty, the court must, in determining whether it has been breached, have due regard to the fact that the existence of the right of way ought not to place an undue burden on D and the importance of maintaining the character of the countryside ii. A person using a public highway is not protected by either Act (though possible to sue under s41 Highways Act 1980) d. Danger from state of the premises? e. Criteria in s1(a-c) satisfied? i. D aware of danger or has reasonable grounds to believe it exists? and ii. D knows or has reasonable grounds to believe that C might come into the vicinity? and 1. Is this also true at the time of the accident? (Donoghue v Folkestone) iii. The risk is one against which D may reasonably be expected to offer C some protection? f. Accepted risks? (s1(6) OLA 1984) i. ex. Ratcliff v McConnel: D, occupier, was not liable for C’s injury when C dived into D’s swimming pool at the shallow end, because when he dived into the pool he willingly took the risk that the swimming pool would be too shallow to dive in but he nevertheless did so

Answer 18

a. Same as above, except: b. Warning: less stringent criterion because it doesn’t need to in all circumstances make C reasonably safe c. Exclusion? i. Cannot exclude (at least because the Act is silent whereas the 1957 is not, so a contrario interpretation) ii. BUT can use a sign like “trespassers enter at your own risk” to argue: 1. Because of the sign D had no reason to believe that someone like C would come into the vicinity (s1(3)(b)) 2. Because of the sign C willingly accepted the risk (s1(6)) – but it won’t work if C was injured by a dangerous in a way that he could not possibly have anticipated when he saw the notice iii. [Roderick says that if D does manage to succeed with one of the above arguments, it seems that nothing in UCTA 1977 would stop him denying that he owed a duty of care under the 1984 Act, because it defines negligence as including breach of the common duty of care under the OLA 1957 (but Roderick thinks that this is an oversight because UCTA 1977 was enacted before the OLA 1984 and nobody thought to update it). Roderick thinks that it is likely that some way would be found to ensure that occupiers of business premises not be allowed to disclaim the duty under the OLA if allowing him to do so would result in him not being held liable for non-visitors’ being killed or injured] 1. NOTE: QUESTION: Surely this simply cannot be right‼ If D succeeds, then it cannot be by showing that he successfully excluded the liability (because you can’t exclude liability under the 1984 Act), so if he does succeed, then he succeeds in showing that, because of the notice, he owed no duty in the first place in respect of the particular injury suffered by C! So if he owed no duty in the first place, then why are we even speaking of exclusions and the Acts, which surely are irrelevant?

Answer 19

a. Physical injury covered | b. Property damage not covered

Answer 20

Facts: C, a diver, dived into the water at midnight in midwinter and broke his neck hitting a grid-pile under water. D was held at first instance to be liable because they knew that substantial numbers of people dived like that and that the grid-piles were a concealed danger. Held (CoA): Reversed finding of liability because s1(3)(b) wasn’t satisfied as though D knew that people may dive at certain times they had no reason to know the likely presence of an individual at the actual time and place of accident. Thus, a duty may be owed in summer but not in the winter to, ex. put up a warning sign (Lord Phillips) Perhaps differentiate between provisions (precautions): if fence, then probably no difference, but if security guard, then perhaps differentiate based on time.

Answer 21

Facts: C, 11 year old child, injured falling while climbing a fire escape vent that was not negligently constructed. Applied Tomlinson v Congleton and said that the owner wasn’t liable because the distinction between children and adults was one “by degree” and the risk was sufficiently obvious to the child that it falls outside the scope of danger created by the “state of premises” for the purpose of S1(1)(a). Longmore LJ: - NHS Trust shouldn’t be liable because: o Hospital’s resources should be allocated to buying hospital equipment and recompensing doctors/nurses rather than protecting against children climbing where they shouldn’t o Imposing liability would mean building a fence around the entire premise, deterring children from playing on the grounds and barring ordinary access routes to the public. This is not worth protecting against occasional, albeit sad, injuries

Answer 22

- Lord Hoffmann: o Danger resulting from the state of the premises (supra) o Knowledge or foresight of the danger (s1(3)(a)): (yes?) ♣ What is the relevant danger? ⇒ Judge: Risk of suffering an injury through diving, the council was aware of this because two men had suffered minor head injuries from diving before this was in 1992 and we have little information nor lead to the inference that there was reasonable ground to believe that there was a risk of serious diving injury ⇒ Ward LJ: The swimming incidents are indicative of the council’s knowledge that a danger existed too wide IJO – the risk from diving and drowning in deep water are different. ⇒ Lord Hoffmann: I accept that the council must have known that there was a possibility that some boisterous teenager would injure himself by horseplay in the shallows and I would not disturb the concurrent findings that this was sufficient to satisfy paragraph (a). But the chances of such an accident were small. I shall return later, in connection with condition (c), to the relevance of where the risk comes on the scale of probability. o Knowledge or foresight of the presence of the trespasser (s1(3)(b)): (yes as long as s1(3)(a) is yes) ♣ Once it is found that the risk of a swimmer injuring himself by diving was something of which the council knew or which they had reasonable grounds to believe to exist, paragraph (b) presents no difficulty. The council plainly knew that swimmers came to the lake and Mr Tomlinson fell within that class. o Reasonable to expect protection (nooooooooo: obvious risk): ♣ Judge: the risk was “obvious”, so no duty to warn against the danger (even if under 1957 Act) ♣ CoA disagreed: "it is only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability”, not satisfied here because of the gravity of the risk, the number of people who incurred it and the attractiveness of the beach (though apportioned liability for contributory negligence) ♣ Lord Hoffmann: the CoA’s approach that if there was a foreseeable risk of serious injury D was under a duty to do what was necessary to prevent it, is an over-simplification – “such care as in all circumstances of the case is reasonable” (whether under the 1984 or 1957 Act) depends, as in negligence, on not only the likelihood of injury but also the social value of the activity that gives rise to the risk and the cost of preventative measures – these must be balanced against each other (cites Bolton v Stone: no duty because socially useful activity, even though injury was foreseeable).

Answer 23

o Donoghue v Stevenson duty to take care not to do something positive that would put them in unreasonable danger of being killed or injured o Everett v Comojo suggests that there might be a duty to take positive acts for occupiers to protect visitors against being attacked by a third party (or even against unreasonably dangerous activities from third parties) – here D, occupiers of a nightclub where Cs were drinking, owed a duty (apparently under common law negligence per Smith LJ, though this is unclear) to take reasonable steps to prevent C from being stabbed by a third party also at the nightclub (which was foreseeable because the guest has (ex.) been excluded previously on account of his violent behavior). The reasoning was that under the OLA 1957 the occupier would have been liable if (ex.) C tripped over the carpet – it would be surprising if D weren’t liable for injuries inflicted by a fellow guest who was a foreseeable danger [weak according to Roderick: Parliament simply didn’t impose such a liability whereas it did for the carpet situation] o NB the firemen duty under Salmon and Ogwo

Answer 24

o S1(1) OLA 1984 says that the Act has effect “in place of the rules of the common law, to determine [duties] in respect of their suffering injury on the premises by reason of any danger due to the state of the premises”, which means that the common law determines what duties occupiers owe to trespassers in respect of risks that do not result from dangers due to the state of the premises o Donoghue v Stevenson liability (ex. Revill v Newbery: duty not to fire a gun through a hole in a shed door that a trespasser was standing behind while trying to break into the shed) o Risks as a result of activities of third parties? “Duty of common humanity” before 1984 may still apply – from British Railway Board v Herrington (1972): D, railway company, held liable to compensate a child who was electrocuted while walking over D’s railway line, which C had access to because D had allowed the fence separating it from a meadow to into disrepair. ♣ NB Roderick: the danger in this case was created by the occupier (indeed in this case there was no need to invoke a “duty of common humanity” because Donoghue v Stevenson would have sufficed), and there was no indication that this duty was ever intended to apply outside cases where a trespasser is endangered by the state of the premises at all!

Answer 25

o To take reasonable steps to eliminate a dangerous situation arisen on his land if he knows or ought to know of that danger, and it is reasonably foreseeable that the danger threatens to damage his neighbour’s land (Goldman v Gargrave: lightning struck a tree on D’s land and set it on fire. D cut down the tree but didn’t extinguish the fire, which spread onto C’s land, causing damage. Held (PC!) that D was liable in negligence because he owed and breached a duty to take reasonable steps to put out the fire) o To take reasonable steps to prevent his premises becoming a source of danger to C’s land??? ♣ Smith v Littlewoods (D owned a cinema that they intended to demolish, but before that, they left the cinema unattended and unlocked, so that vandals entered, set it on fire, and the fire damaged C’s neighbouring land. Held (HL) that D did not owe C a duty to keep D’s premises secure so as not to become a danger to C’s premises because it was not foreseeable that failure to keep D’s premises secure would harm C’s) ♣ But in the course of deciding the case: ⇒ Lords Brandon and Griffiths said that a duty IS owed to rake reasonable steps to prevent D’s premises becoming a source of danger to C’s land ⇒ Lord Goff said that it is NOT (only Goldman v Hargrave duty once a danger has arisen) ⇒ Lord Mackay said a middle way: there will be a duty if it is reasonably foreseeable that if the premises are not kept secure vandals will break in and start a fire liable to spread to C’s land o However, Lord Mackay thought that it would be more difficult (though he didn’t deny a duty either) if it were thieves instead of a fire (foreseeable that if D didn’t keep premises secure then thieves would break in and use that to gain access to C’s land) ⇒ Lord Keith agreed with both Lord Goff and Lord Mackay apparently not realizing the difference ♣ So basically we don’t know… The most that can be said is that a majority of the HL thought (at least) that a duty would be owed in fire cases where it is foreseeable

Answer 26

o If D is owner of premises adjoining a highway o And there is some fixture attached to these premises liable to fall into the highway if it falls into disrepair (tree, sign…) o D will owe a duty to people using the highway to take reasonable steps to see that the fixture does not fall into the highway and injure them (i.e. take the fixture down or repair it if it is in an obviously dangerous condition, and have an expert look at it for latent defects from time to time) Basis of the duty: common law negligence and public nuisance

Answer 27

There was a threat to health and safety due to defective foundations, which had caused cracks in the walls of the building. The damages the occupiers were allowed to recover consisted in such sums as each had to expend to put his dwelling in a state in which it was no longer a danger to health and safety (“preventive damages” – Cane). The case was regarded as one of “physical damage” though all that seemed to be needed was a “present and imminent threat” of physical damage. The effect of Murphy is generally to rule out the possibility of recovery for preventive damage, subject to Lord Bridge’s view concerning the building close to the boundary of land. However: - Cane argues that recover for preventive damages may be “economically justified in that prevention is often cheaper than cure”. - Stevens argues that exempting the builder from liability could result in unjustified enrichment. Junior Books v Veitchi (referred to in Murphy but not overruled) is a particularly difficult case that allowed the recovery of PEL in the buildings context.

Answer 28

Murphy v Brentwood said no to tortious liability of builders to subsequent purchasers not in contractual privity, but Canada SC said yes in Winnipeg Condominium v Bird Construction: - La Forest J (for the unanimous court): if someone is negligent in planning or constructing a building, resulting in defects that pose a real and substantial danger to the occupants, the reasonable costs that they incurred in repairing the defects to a non-dangerous state are recoverable in tort. Applying Lord Wilberforce’s two-stage test in Anns v Merton: o Sufficient proximity = yes, reasonably foreseeable to contractors that subsequent purchasers might suffer personal injury or property damage when defects manifest themselves. The foreseeability of injury also serves to ground liability where the defect has not yet inflicted injury. Rejected Lord Keith’s argument in Murphy that a useless article and dangerous article that has not yet inflicted injury are the same because the owner can just discard it, because it is unrealistic in practice since home owners can’t just discard. ♣ This is attractive because under Murphy one who repairs defects responsibly before it causes injury must do so at their own expense, while one who waits for an accident may recover for very costly and potentially tragic consequences. Thus the doctrine in Murphy encourages reckless, hazardous and economically inefficient behaviour. ♣ It is also attractive because it avoids the distinction between self-destruction (not recoverable in tort) and destruction of other property (recoverable), which distinction often leads to complex dual claims in contract and tort to recover different losses from the same accident. o Sufficient reason not to impose liability = rejected concern in D & F Estates that liability in tort would impose on the contractor an obligation to honour a non-contractual warranty of the quality of its workmanship and materials, because the duty in tort flows independently, from the contractor’s duty to ensure that the building meets reasonable and safe standard. There is no reason for contractors to use their contractual arrangement with original owner to shield themselves from liability. ♣ Rejected indeterminacy arguments ♣ Rejected argument that a duty would interfere with caveat emptor doctrine, because it is not responsive to the realities of the housing market where latent defects frequently don’t manifest themselves for a long time.

Answer 29

Perhaps the answer is to distinguish what duties are contractually owed and what duties are owed irrespective of contract, and to deal with the latter under tort law, and preserve privity of contract in the former category. The deficiency in tort law to remedy the second category of cases puts pressure on the privity doctrine to give way.

Answer 30

NB Canadian SC declined to follow D & F Estates because that decision rested largely on an assumption that liability in tort for cost of repair would represent an unjustifiable intrusion of tort into the contractual sphere. Canadian SC, however, recognizes the possibility of concurrent contractual and tortious duties, so the point was deemed irrelevant. Now, UKHL has adopted concurrent liability in tort and contract as well, so the foundation of Murphy may now rest only on a lack of sufficient proximity. English courts may be tempted to distinguish Winipeg Condominium on the basis that in that case the faulty property posed a danger to people on neighbouring land (though this is unclear and not considered) but distinction between recovery for expenditure removing an owner’s potential liability to neighbours and occupier’s potential liability to visitors seems untenable. Canadian SC’s criticism of Murphy should not be discounted on factual distinctions.

Answer 31

Injury due to the state of D’s premises: no — the Acts replace the CL duty of care in negligence • Injury due to D’s activities on D’s premises: Some disagreement here: o s.1(1) (both Acts): states the Act replaces the CL duty with respect to “dangers due to the state of the premises or to things done or omitted to be done on them.” This lead Lord Keith in Ferguson v Welsh to suggest that activities came within the scope of the Acts. o s.1(2) (both Acts): wording suggests the OLA does not apply to activities. This lead Lord Goff in Ferguson and The CA in Fairchild [2001] to suggest occupiers could only be liable in negligence for activities conducted on their land. ♣ Fairchild : Brooke LJ: considered the judgments of Lord Keith and Lord Goff in Ferguson and felt there was nothing in Lord Keith’s judgement to prevent him concluding that the Acts are “confined an occupier's duties to the dangerous condition of his premises, whereas [in Fairchild] C’s injuries were the result of activities being conducted on the premises.” Prevailing view: D will only be liable under the Acts for dangers arising from the state of the premises; but D will only be liable in negligence, not the Acts, for activities conducted on his land.

Answer 32

• An occupier will own his visitors, and others lawfully on his land (though not by virtue of using a right of way over his land) a duty to take reasonable steps to see that they are reasonably safe for the purposes for which they are on the land.

Answer 33

• An occupier will owe trespassers on his land (and those using a right of way over the land) a duty to take reasonable steps to protect them against dangerous features of his land, when: o He knows or ought to know about the dangerous feature; o He knows our ought to know a trespasser might come into the vicinity of that dangerous feature. o He can reasonably be expected to offer some protection against that danger.

Answer 34

An occupier will own a CL duty to take reasonable care to prevent others from suffering foreseeable harm caused by activities conducted on his property. Normal negligence rules apply

Answer 35

* reasonably be expected to be affected” by defects in “work of construction, repair, maintenance” on premises. This persists after the property is sold. * s.4: Landlords have a duty to “all persons who might reasonably be expected to be affected” by “defects in the state of the premises.” This imposes liability where landlords breach their obligations to maintain / repair property.

Answer 36

“a duty imposed by law in consequence of person’s occupation or control of the premises.” The Act does not “alter the rules of the common law as to the persons on whom a duty is imposed.”

Answer 37

C (4) entered a derelict house and was injured. The property had been the subject of a compulsory purchase order by the council, but they were not in possession. CA: a person does not have to be in physical possession of property to be an occupier.

Answer 38

'The foundation of occupier's liability is occupational control, i.e. control association with and arising from presence in and use of or activity in the premises...'

Answer 39

1. the person with the power to say 'come in' will be an occupier - but one can be an occupier even if one didn't say 'come in' to the visitor 2. where the landlord lets premises to the tenant, he does not retain sufficient control to count as an occupier, even if he has undertaken to maintain or repair the premises: Cavalier v Pope (nb statutory duty under Defective Premises Act 1972) 3. Where a Landlort lets floors or flats, but he does not let common areas, such as common staircases- he or she will be treated as retaining sufficient control of the part not let as to be an occupier of it 4. where an owner in possession grants a licence - he or she will retain sufficient control to count as an occupier 5. where an owner in possession employs independent contractors - he or she will retain sufficient control to count as an occupier. The contractor may be an occupier

Answer 40

o Occupancy is about control not exclusive possession. o Multiple people can be occupiers — C will want to choose D with most money (here D was a brewery and X a (relatively) poor landlord.

Answer 41

A visitor is someone who has express / implied permission to be on the land. • s.2(6): those who enter the premises “for any purpose in the exercise of a right conferred by law” are visitors, regardless of actual permission conferred by D (e.g. those entering pursuant to a contract).

Answer 42

• C (5) walked across a large area of grassland, part of a building site being developed by D. C fell into a deep trench, which would have been obvious to an adult. Devlin J: children were in the habit of using the land to play and D had taken no steps to prevent them from doing so; as a result, C was impliedly licensed to enter the grassland. o However, C’s claim was unsuccessful because D was entitled “to assume that parents will not normally allow their little children to go out unaccompanied, he can decide what he should do and consider what warnings are necessary on that basis.” D only had to provide warnings that would be sufficient to alert adults accompanying their children to the danger.

Answer 43

• D owned land regularly used by members of the public for recreation. C was drunk and ran over D’s land to escape from a taxi without paying and was injured. CA: C was not a visitor — C had an implied licence, created by D’s conduct in allowing the land to be used for recreation. However, the licence was for general recreational activity and extended to normal activities carrying normal risks. The licence did not extend to reckless activities such as running around in the dark whilst drunk; C was not a visitor at the time of the accident. It follows that if D expressly/impliedly consents to C entering premises at a particular time, or D limits permission to access a certain part of his premises, then C be a trespasser if he stays longer / access a different part of the property

Answer 44

• McGeown [1995] C using a public right of way is not a visitor; D doesn’t owe a duty of care to keep the right of way in a safe condition. Such a duty would be an “impossible burden” on landowners.

Answer 45

any fixed or moveable structure (s.1(3)). Thus ships/aircraft/cars count.

Answer 46

Makepeace v Evans Bros [2011]

Answer 47

Bunker v Charles Brand & Sons ltd [1969]

Answer 48

Furmedge v Chester-le-Street DC [2011]

Answer 49

s.2(2): “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.” • Note: the duty is not to ensure the premises is safe — not all premises are safe, nor would it be desirable for this to be the case — it is about enabling visitors to be safe. • The duty extends to omissions to make the premises safe (i.e. allowing it to descend into disrepair).

Answer 50

s.1(3)(b): occupiers owe a duty in respect to visitors’ property this includes “property of persons who are not themselves his visitors” (i.e. covers C who borrowed X’s jacket, which is ruined by D).

Answer 51

• s.2(4) in determining whether D discharged his duty, “regard is to be had to all the circumstances”. o ‘Circumstances’ include (not listed in Act, just factors which weigh in standard of care in negligence): (i) likelihood risk will materialise and cause harm; (ii) the seriousness of the injury which could result if the risk materialises; (iii) cost of preventing the risk; (iv) Tomlinson noted the social value of the danger giving rise to the risk.

Answer 52

• s.5: if C enters D’s premises in exercise of a contractual right, the s.2(2) duty of care may be an implied term of the contract. However, court cannot imply a term requiring a stricter contractual duty. o Maguire v Sefton [2006]: C was injured using gym equipment. X (contractor employed by D to install/inspect equipment) had failed properly to inspect gym equipment. C entered the gym under a contractual licence with D. Rix LJ: rejected trial judge’s finding the contract contained an implied duty stricter than s.2(2). s.5 means “the content of a contractually implied term, in the absence of contrary agreement, is exactly the same as the duty for which s2 provided”.

Answer 53

• s.2(3)(a): standard of care depends on “degree of care, and want of care, which would ordinarily be looked for in such a visitor.” Occupiers “must be prepared for children to be less careful than adults.” As such, an occupier must do more to protect children from danger on his land than to protect adults

Answer 54

o child (7-year-old) ate poisonous berries from shrubs that had not been fenced off in a public park. HL: extra steps needed to be taken — the berries were both dangerous and an allurement to children. Glasgow Corp were aware of the danger and of children in the park.

Answer 55

D was liable when children entered his land to attempt to fix a rotten wooden boat. HL: the boat was an allurement to children and it was foreseeable that they might enter his land to play on it and it suffer injury. They were 14

Answer 56

boy aged five and his sister aged seven walked across a large open space which was being developed by D. It was known to D that people crossed their land but they apparently took no action. The child fell into a trench that had been dug in middle of open space and broke his leg. Although trench would not have been obvious to a child D were not liable. Devlin J placed responsibility for small children primarily on their parents and concluded that both parents and occupier must act reasonably.

Answer 57

• s.2(3)(b): An occupier is entitled to expect that a skilled visitor will appreciate / guard against any special risks which ordinarily occur in his trade. Risks must be “risks ordinarily incident to” the trade.

Answer 58

o D employed Cs, expert chimney sweeps, to clean his boiler. D discovered the boiler was dangerous and warned Cs not to enter, but Cs did so anyway and died. CA: it was reasonable to expect chimney sweeps to guard against the risk of carbon monoxide poisoning. Denning: “when a householder calls in a specialist to deal with a defective installation on his premises, he can reasonably expect the specialist to appreciate and guard against dangers arising from the defect. The householder is not bound to watch over him to see that he comes to no harm."

Answer 59

o D started a fire at his fish and chip shop. C, a firefighter, was injured. QBD: D was liable, notwithstanding s.2(3)(b). NB: hard decision to accommodate.

Answer 60

reasoning in Phipps v Rochester Corp was followed in Simkiss v Rhondda Borough Council (1983) where a seven-year-old girl fell off a steep slope which was situated opposite block of flats where she lived. Her father stated in evidence that he had not considered slope to be dangerous and CA concluded that if child’s father did not consider area dangerous, D could not be asked to achieve a higher standard of care.

Answer 61

In Bourne Leisure Ltd v Marsden [2009] question was whether a holiday site owner was liable for drowning of a child in a pond, by failing to highlight dangers and bring pond’s location or existence of an access pathway to parent’s attention. trial judge found that by failing to give warnings of that nature to parents the site owner was in breach of their common duty of care. However, in allowing Bourne Leisure’s appeal, CA held that although an occupier ought reasonably to anticipate that small children might escape attention of parents and wander into places of danger, it does not follow that occupier is under a duty to make premises completely safe for children. problem with attaching blame in cases involving young children was noted by Lord Justice Moses who said that accidents may and do happen to young children without anyone job and for her she being at fault. (Sometimes parents just want someone else to blame, because of the terrible guilt they feel.)

Answer 62

duty of care does not require D to guard against “risks willingly accepted as his by the visitor.” This means that were a risk is plainly obvious, or such a risk is inherent to the type of activity undertaken, the risk shall be considered to be accepted

Answer 63

o C used a climbing wall operated by D. C did not read the rules, fell and was seriously injured. CA: D was not liable — C had engaged in an inherently risky activity and “suffered his injury because he chose to indulge in activity which had inherent dangers, not because the premises were in a dangerous state.” The OLA imposed no duty on D to train / supervise adults using the wall. ♣ May LJ: duty to protect C from obvious risk / self-inflicted harm would only arise where C made no genuine/informed choice to take the risk, or where D assumed responsibility for C’s safety.

Answer 64

o C drowned in a lake. CA: lake was no different from other lakes and adults know the risks of swimming. This was so even though NT had taken no precautions to prevent swimming, but had done so at other lakes. No duty to warn of an obvious risk.

Answer 65

o C (employee) was conducting risky tunnelling work, which is inherently unsafe. C knew about the risk. QBD: D (employer) was an occupier and was liable because he could have done more. Just knowing about a risk is not enough to assume it.

Answer 66

o C killed at a motor racing event due to defective barriers; D organiser displayed notices warning the public of danger. Although C entered premises in knowledge he might be harmed in a particular way, he will not be held to have willingly taken the risk of other types of harm. Note, D was still not liable here as he had effectively excluded liability.

Answer 67

• s.2(4)(b): Where harm to C is caused by “the faulty execution of any work of construction, maintenance or repair by an independent contractor,” the occupier will not be liable if: (i) occupier “acted reasonably in entrusting the work to an independent contractor”; (ii) occupier took the steps he “reasonably ought” to ensure “the contractor was competent”; (iii) occupier took the steps he “reasonably ought” to ensure “the work had been properly done.” o Interpretation: section is interpreted broadly — it covered demolition work in Ferguson and was applied (although it was not engaged directly) to the running of a ‘splat wall’ in Gwilliam.

Answer 68

o Gwilliam v NHS [2002]: D contracted with X, an independent contractor, to provide a ‘splat wall’ for visitors at D’s fete. X’s insurance expired just before the fete. C was injured because X negligently set up the wall. CA: D was not liable as it had not breached its duty of care. s.2(4)(b) meant that an occupiers duty extended to inquiring into whether or not the contractor had adequate liability insurance — but this meant asking not actually checking. Here D had asked X, but had not seen documentation. ♣ Sedley LJ’s dissent: D was not under a duty to check X’s insurance position — the OLA imposes a duty to protect visitors from harm, so D is under a duty to check contractors are competent not that the contractor is worth suing if he proves to be incompetent (this is a different category of risk, not covered by the Act). His dissenting position has been preferred since: Naylor v Payling [2004] — CA: no general requirement to check on the insurance position of an independent contractor; Glaister v Appelby-in-Westmoreland Town Council [2009]: CA expressed a preference for Sedley’s reasoning.

Answer 69

o also considered whether s.2(4)(b) operated so as to impose a duty on D to supervise a contractor’s system of work. s.2(4)(b): is designed to protect an occupier from an independent contractor who has performed work in a faulty manner. An occupier is not normally required to supervise a contractor whom he has reasonable grounds for regarding as competent. D will only lose the protection of s.2(4)(b) if he has actual knowledge / reason to suspect that B has a history of unsafe employment practices — then he might have to supervise X’s system of work. ♣ Lord Goff (minority): OLA 1957 was not engaged because C’s injury resulted from X’s activities on D’s land (X’s unsafe system of work), not from the state of D’s premises. This approach was affirmed in Fairchild, see above.

Answer 70

• warning a visitor of danger is not enough, “unless in all the circumstances it was enough to enable the visitor to be reasonably safe.” o This is a subjective test — in line with the fact that the duty is to keep the individual visitor safe, not the premises. o Where a visitor has no choice but to run the risk, a warning of the risk is not adequate; giving an alternative would be adequate. o It is important to distinguish warnings/exclusions of liability/restriction of entry.

Answer 71

• occupier may “restrict, modify, or exclude his duty to any visitor by agreement or otherwise.” o Distinguish between discharge of duty and exclusion of liability; duty will not arise if discharged. ♣ Some warnings will do both (‘do not cross the bridge’ and ‘not responsible for any damage). o White v Blackmore: notices at entrance of the field were sufficient (non-contractual notice).

Answer 72

• has greatly restricted the ability to exclude liability: o Premises used for business purposes: ♣ s.1(3) liability must be incurred “from the occupation of premises used for business purposes of the occupier” or where D incurs liability “in the course of a business.” ♣ Recreational purposes exception: However, where the breach of duty is towards “a person obtaining access to the premises for recreational or educational purposes”, this is not a business liability unless “granting that person such access for the purposes concerned falls within the business purposes of the occupier.” ♣ s.2(1): occupier can’t exclude liability for death / personal injury. ♣ All other exclusions must satisfy the reasonableness test in s.11(3): “it should be fair and reasonable to allow reliance on it, having regard to all the circumstances.” ♣ s.2(3): agreement / awareness of notice is not itself indicative of acceptance of risk. ♣ s.13: it also applies to duty-defining terms (e.g. occupier has no duty in respect of death). o Premises used for private purposes: occupiers can exclude liability (even death/injury).

Answer 73

• governs trader to consumer contracts: o Definitions: a trader is a person acting for “purposes relating to their trade” and a consumer is a person acting for “purposes that are wholly or mainly outsider that trade” ♣ Note that this has been applied broadly by the ECJ in Brusse v Jahani 2013 — important thing is there is an inequality of bargaining power. o Application to notices where they (s.61): (i) relate to rights and obligations between T and C; (ii) purport to exclude / restrict T’s liability to C. o Effect: (s.62(2)): an unfair consumer notice is not binding on the consumer. o Unfairness test (s.62(4)) notice will be unfair where contrary to good faith requirement it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer. ♣ s.62(7): test will take into account: (i) subject matter of the notice; (ii) all the circumstances. o s.65 Can’t exclude or restrict liability for death or personal injury resulting from negligence: this includes Occupier’s liability and CL duty of care. ♣ s.65(2): C won’t be taken to have accepted a risk just because he knew about a notice. o s.66(4) recreational exception: s.65 does not apply where: (i) C suffers loss / damage because of the dangerous state of the premises; (ii) T allows C into the premises for purposes other than his trade.

Answer 74

For all exclusion clauses, reasonable steps must have been brought to visitor’s attention, although actual knowledge of the clause is not required — Ashdown v Williams & Sons

Answer 75

CL duty of care to trespassers recognised in Herrington v British Railway Board [1972]: child trespassed onto a railway line and was injured. Lord Diplock (HL) No duty to trespassers could arise unless an occupier had actual knowledge of: (i) the dangerous condition of his land; and (ii) the likely presence of trespassers. No duty to make enquires as to the condition of the land for the benefit of trespassers. Lord Hoffmann in Tomlinson noted the difference between the Acts: for lawful visitors “one starts from the assumption that there is a duty,” for trespassers “one starts from the assumption that there is none”.

Answer 76

anyone “other than visitors.” Includes those using rights of way (McGeown) and trespassers

Answer 77

C was a visitor in the park, but a non-visitor once he jumped in lake.

Answer 78

a duty is owed if: (a) Occupier is “aware of the danger or has reasonable grounds to believe that it exists” (b) Occupier “knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger” o Requires actual knowledge: Swain v Nati Ram Puri [1996]: C (child) was seriously injured after scaling a wall to a roof, then falling through a skylight. CA: rejected an argument that occupiers reasonably should have known that children would be attracted to an abandoned warehouse adjacent to a council estate. Evans LJ: what is required is “actual knowledge including ‘shut-eye’ knowledge either of the actual risk or primary facts” from which the court might draw the necessary inference. Shut-eye knowledge is “knowledge equivalent to actual knowledge as a matter of law, and it may be equated … with an element of wilfulness though not with negligence alone.” Constructive knowledge is not enough. (c) The “risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.” o Tomlinson: D became a trespasser once he entered the lake, but the council did not owe a duty of care to C under the OLA 1984 because s1(3)(c) would not be satisfied. ♣ Factors in assessing if risk was one against D could be expected to offer protection: (i) likelihood of injury; (ii) seriousness of possible injury; (iii) social value of activity giving rise to the risk; (iv) cost of preventative measures (won’t be given much weight). ♣ Lord Hobhouse: “It is not, and never should be, the policy of the law to require the protection of the reckless few to deprive the enjoyment by the remainder of society of the liberties and amenities to which they are rightfully entitled”. ♣ Where the danger would have been obvious to any adult, it will not be reasonable under s.1(3)(c) to expect the occupier to offer C protection from it. Diving into shallow water was an obvious danger. Lord Hoffmann: “I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely chose to undertake. A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice”. o Keown v Coventry NHS [2006]: C (11) climbed a fire escape on the side of D’s hospital. C fell and was injured. CA: D was not liable. Although D knew of the risk (s.1(3)(a)) and knew children played in its vicinity (s.1(3)(b)) it wasn’t reasonable to expect D to offer protection from such a risk (s.1(3)(c)) ♣ C recognised the risk posed by the staircase and chose to indulge in it, so C’s injury was caused by C’s own activity, not by a danger arising from “the state of the premises or things done or omitted to be done on them”, so C’s claim fails under s1(1)(a). ♣ However, the court recognised there may be cases where the occupier is under a duty to protect against an obvious risk, because a child may be incapable of recognising an obvious risk so as to make a “genuine and informed choice” to take the risk. ♣ Considered the resources of the NHS were better spent treating patients than protecting against this kind of risk.

Answer 79

the duty only extends to personal injury — no duty to prevent property damage.

Answer 80

“the duty is to take such care as is reasonable in all the circumstances of the case to see that C does not suffer injury on the premises by reason of the danger concerned.”

Answer 81

Lewison J: content of s1(4) duty may be more onerous where foreseeable trespasser is a child.

Answer 82

if C’s injury was caused by his activity on D’s premises, rather than a danger arising from “the state of the premises or things done or omitted to be done on them”, as in Tomlinson and Keown, then D cannot be liable under the OLA 1984. However, Tomlinson interpreted ‘things done’ to mean D’s may be liable for his own “activities or lack of precautions which cause risk” — e.g. D is shooting on his land.

Answer 83

duty of care may “be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk”.

Answer 84

no duty of care “in respect of risks willingly accepted.”

Answer 85

* the Act is silent on whether an occupier can exclude / restrict liability to non-visitors; most commentators assume that occupiers can exclude liability (as liability to visitors can be excluded and visitors are given stronger protection than trespassers). * s.1 UCTA 1977: does not include s.1(4) of the OLA 1984 in its definition of negligence (but does include the 1984 Act). It appears therefore that business occupiers can exclude liability for death / personal injury. However, it is arguable that this is defective drafting — courts may (if this is tested) find that it creates a lacuna in the law which could make OLA 1984 pointless.

Answer 86

* Cannot claim for property damage; * UCTA does not apply; * Must tick the three boxes in Section 1(3).

Answer 87

s. 61(4) consumer notice: 'a notice to the extent that it - (a) relates to rights or obligations between a trader and a consumer, or (b) purports to exclude or restrict a trader's liability to a consumer'

Answer 88

s. 69(1) 'if a term in a consumer contract, or a consumer notice, could have different meanings the meaning that is most favourable to the consumer is to prevail.'

Answer 89

S. 62(2) 'An unfair consumer notice is not binding on the consumer' AND s. 62(6) 'a notice is unfair, if contrary to the requirement of good faith, is causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer'

Answer 90

s. 65(1) 'a trader cannot by term of a consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligence.' NB recreational exception to the special rules s. 66(4): 's. 65 does not apply to the liability of an occupier of premises to a person who obtains access to the premises for recreational purposes if- (a) the person suffers loss or damage because of the dangerous state of the premises, and (b) allowing the person access for those purposes is not within the purposes of he occupier's trade, business, craft or profession.' i. e. consumer visiting traders' land for recreational purposes

Answer 91

Birthday party guests at home (non-consumer so warning and exclusion valid)

Answer 92

Magdalen college and film crew (also not consumer as both acting in their trade)

Answer 93

s. 2(1) 'a person cannot by reference to any contract term or to a notice given to persons generally or to a particular persons exclude or restrict his liability for death or personal injury resulting from negligence.' s. 2(2) 'in the case of other loss or damage, a person cannot exclude or restrict liability for negligence except so far as the term or notice satisfied the requirement of reasonableness.'

Answer 94

CRA 2015 S. 65(4) does not include liability under the 1984 act in its definition of 'negligence' for the purposes of s. 65(1) and it is not included within the scope of 'negligence' for the purposes of s.2 UCTA

Answer 95

Scrutton LJ: 'When you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters, you invite him to use the staircases in the ordinary way in which it is used.'

Answer 96

D entered back of bar in search of a toilet. Attacked by a dog. D liable as no sign or indication that visitors should not be there.

Answer 97

Milkman injured using a private right of way - a person exercising a private right of way is not a lawfulvisitor

Answer 98

standard is similar to that applied in negligence, hence much falls on foreseeable risk. Bolton v Stone says that one has to undertake a balancing exercise between the magnitude of the risk and the likelihood of the risk, as well as the cost of intervention. For example, in Paris v Stepney BC, though the risk of a rusty bolt flying out was low, so too was the cost of providing goggles. Similarly, the cost of providing goggles and a helmet in the present case is low and as such there would be a duty to provide such equipment, which the occupiers seemingly satisfied.

Answer 99

Builders had not discharged duty by warning because they hadn't provided reasonably safe alternative

Answer 100

In Gwilliam, since members had been invited to take part in inherently risky activities, which the defendant (D1) organised by an independent contractor (D2), it was fair, just and reasonable to impose a duty on D1 to choose an independent contractor who could properly meet any potential liability. In that case, the duty was fulfilled because D1 did inquire into D2’s insurance (per Lord Woolf). In Naylor v Payling, however, Neuberger LJ held that there was no duty on an employer to satisfy himself that an independent contractor had insurance cover, ‘save in exceptional circumstances’. The two cases can be reconciled by distinguishing Gwilliam on the bases that it concerned a one-time, and inherently dangerous activity, for which having insurance was central to ascertaining whether that contractor was competent. In the present case, although Dauntless Demolition had an ‘excellent reputation’, it would also be necessary to at least check to see whether they had insurance as the demolition was a one-time, and inherently dangerous, operation. By failing to do so, Avarice Ltd did not discharge their duty.

Answer 101

claimant had no option but to stay on dangerous premises therefore s. 2(5) cannot apply

Answer 102

s. 1(1) Law Reform (Contributory Negligence) Act 1945 we take account of his individual characteristics, fault and causal potency (Jackson v Miller). terms of apportionment, s.1(1) provides that the damages will be reduced to ‘such an extent as the courts thinks just and equitable having regard to the c’s share in the responsibility for the damage.’

Answer 103

‘excellent reputation’ amongst property developers, we can infer that they have specialist skill. Therefore, the standard of care is that of ‘the ordinary skilled man exercising and professing to have that special skill’ (Bolam). This has subsequently been qualified by Bolitho, in which the House of Lords held that the body of opinion must be able to withstand logical analysis.

Answer 104

in Morris v Murray, Fox LJ held that ‘the wild irresponsibility [of flying in a small aircraft drunk] was such that the law should not intervene to award damages and should leave the loss to lie where it falls’. Denning: 'nothing will suffice short of an agreement to waive any claim for negligence’.

Answer 105

On the one hand, OLA 1957 does not specifically refer to impairments of a mental condition; it imposes a duty on an occupier to see that his visitor will be ‘reasonably safe’. On the other hand, s. 1(9) OLA 1984 defines damage as including ‘any impairment of physical or mental condition’. Therefore, if we construe the OLA 1957 duty to keep reasonably safe as covering mental injury, then it would appear that no common law restrictions (Alcock) could be imposed limiting those entitled to recovery. An argument in favour of construing ‘reasonably safe’ as encompassing protecting from psychiatric injury is that otherwise trespassers would have better protection than visitors. it is right claim psychiatric injury under the 1957 OLA. There is no case law on this point but the Alcock requirements should not be imported since this would go against the statutory language in the OLA that it is intended to replace the rules on common law duty of care. The fact that this undermines the restrictions in Alcock may be weakened as an argument because the restrictions in Alcock are a response to the concerns of the indeterminacy of the number of potential claimants. Yet, in the case of occupier’s liability, the occupier is aware of the scope of their liability since the number of possible claimants is determinable, and so it would be possible for the circus to get the necessary insurance.

Answer 106

Chad may wish to sue Avarice Ltd for breach of their occupier’s liability. First, we are told that Chad was invited to press the detonator at the demolition. Therefore, he would be an ‘invitee’ as per s. 1(2) OLA 1957. Secondly, the old buildings clearly satisfy the definition of premises as they are ‘fixed’ structures, as per s. 1(3). Thirdly, Avarice Ltd is an occupier. Lord Denning in his five points in Wheat v Lacon held that where an owner employs an independent contractor, the owner retains ‘sufficient control’ to count as an occupier. Crucially, ‘he need not have exclusive occupation’ (Wheat v Lacon per Lord Denning). Avarice Ltd therefore owes Chad the ‘common duty of care’ (s. 2(3)) to take such care as would enable the visitor to be reasonably safe. In addition, the danger arose due to ‘things done’ to the premises (i.e. the demolition), as per s. 1(1). An argument could be raised to suggest that the injury was sustained by an activity on the land (the demolition) rather than the dangerous conditions of the premises (the old building). Brooke LJ, in Fairchild (CA) upheld Lord Goff’s distinction in Ferguson between activity and occupancy. However, unlike in Keown or Tomlinson where the individual used the premises in a way that was inherently dangerous and outside of the scope of normal use (by improperly climbing a fire escape and diving into a lake respectively), Chad was injured from the demolition of the demolition site. Therefore, the activity of the demolition and the nature of the premises cannot be readily separated Next, it is necessary to establish the standard of the duty. S. 2(2) requires that the visitor is reasonably safe while using the premises for the purposes for which he is invited. Further, the standard is similar to that applied in negligence, hence much falls on foreseeable risk. Bolton v Stone says that one has to undertake a balancing exercise between the magnitude of the risk and the likelihood of the risk, as well as the cost of intervention. For example, in Paris v Stepney BC, though the risk of a rusty bolt flying out was low, so too was the cost of providing goggles. Similarly, the cost of providing goggles and a helmet in the present case is low and as such there would be a duty to provide such equipment, which the occupiers seemingly satisfied. Furthermore, it is important to highlight that different standards of care apply for different visitors (s. 2(3)). In the present case, the standard of care will be higher as Chad is a child (s. 2(3)(a)). What the standard will be is a matter of degree. On one end of the spectrum, if the child is very young (i.e. 5 years old), the occupier can expect that child to be accompanied by an adult (Phipps v Rochester). If the child is older (i.e. 11), then the courts may be less willing to ‘ignore a child’s choice to indulge in a dangerous activity’ (Keown v Coventry Healthcare NHS Trust per Longmore LJ). In the present case, Chad is 15. The occupiers can therefore expect him to wear the safety goggle and helmet provided since the danger arising from shrapnel is obvious. If Chad was younger, then it may have been reasonable to put the goggles on him (if permissible at all to let him detonate the old buildings!). Avarice Ltd may also seek to show that they discharged their duty by taking reasonable steps to give warnings which must enable the visitor to be ‘reasonably safe’ (s. 2(4)(a)). However, unlike the sign in Tomlinson which stated ‘no swimming: dangerous water’ or the oral warning given to the chimney sweeps in Roles v Nathan, the present warning which states ‘entry is at your own risk’ is inadequate because it is unclear as to nature of the risk. Although Chad is old enough to read the sign, he cannot take measures to mitigate the risk which is ill-defined. Alternatively, Avarice Ltd may argue that they discharged their duty by acting reasonably in entrusting the work to an independent contractor and that they had taken such steps as they reasonably ought to in order to satisfy themselves that Daunting Demolition was competent and that the work had been properly done, as per s. 2(4)(b). In Gwilliam, since members had been invited to take part in inherently risky activities, which the defendant (D1) organised by an independent contractor (D2), it was fair, just and reasonable to impose a duty on D1 to choose an independent contractor who could properly meet any potential liability. In that case, the duty was fulfilled because D1 did inquire into D2’s insurance (per Lord Woolf). In Naylor v Payling, however, Neuberger LJ held that there was no duty on an employer to satisfy himself that an independent contractor had insurance cover, ‘save in exceptional circumstances’. The two cases can be reconciled by distinguishing Gwilliam on the bases that it concerned a one-time, and inherently dangerous activity, for which having insurance was central to ascertaining whether that contractor was competent. In the present case, although Dauntless Demolition had an ‘excellent reputation’, it would also be necessary to at least check to see whether they had insurance as the demolition was a one-time, and inherently dangerous, operation. By failing to do so, Avarice Ltd did not discharge their duty. A may attempt to argue that they had excluded their duty with the disclaimer. S. 2(1) allows an occupier to extend and restrict his liability in so far as he’s allowed to do so. However, UCTA 1977 (s. 2(1)) and CRA 2015 (s. 65) prohibit the exclusion of death or personal injury. Therefore, they cannot exclude liability for Chad’s eye injury. The fact that Chad knew/agreed to the risk is not itself indicative of acceptance of the risk (s. 2(3) UCTA; 65(2) CRA). There are no issues of remoteness or causation. With respects to defences, the duty does not require occupiers to protect visitors against risks willingly accepted by the visitor (s. 2(5)). This is a special application of the volenti defence. Unlike Burnett v British Waterways Board, in which the claimant had no option but to stay on dangerous premises, Chad had the option of wearing the safety goggles but opted not to, to ‘look cool’. Nonetheless, he did not know that there was twice as much dynamite so could not have consented. However, A may have a defence for contributory negligence, per s. 1(1) Law Reform (Contributory Negligence) Act 1945. In the present case, Chad contributed to his own accident by failing to wear the goggles that were supplied to him. In determining whether Chad fell below the standard expected of him, we take account of his individual characteristics, fault and causal potency (Jackson v Miller). As a 15-year-old, Chad could be expected to be aware of the risk of debris hitting him and to give greater weight to that than the need to feel ‘cool’. However, his age would mean that he would not be held to the same standard as an adult. In terms of apportionment, s.1(1) provides that the damages will be reduced to ‘such an extent as the courts thinks just and equitable having regard to the c’s share in the responsibility for the damage.’ Thus, in Tomlinson, the HL overturned the CA’s apportionment of 2/3 since the risk was ‘obvious’, holding there to be no duty at all. In the present case, Chad’s age is likely to mean that the occupiers should have insisted on him wearing the goggles since it was less likely to have been ‘obvious’ to a 15-year-old. A just and equitable reduction would be 1/2, since, whilst Chad should have worn his goggles, using double the amount of explosives (particularly when surrounded by children) is equally causally connected and blameworthy. Finally, turning to damages, under the OLA 1957, both personal and property damage may be claimed (cf OLA 1984), in line with the common law. Therefore, Chad would most likely receive damages for personal injury.

Answer 107

Chad may also sue A for breach of their non-delegable duty and/or vicarious liability. Lord Sumption in Woodland outlines two categories of cases which may give rise to a non-delegable duty. First, there is the ‘large, varies and anomalous’ class of cases in which a defendant employs an independent contractor to perform some functions which is either inherently hazardous or liable to become so in the course of his work. The present case could fall under this first category. In Honeywell v Larkin, an individual set fire to the curtains by negligently igniting magnesium powder for photographing the cinema’s interior, a common practice. That individual was the independent contractor of D, who were to conduct acoustic work. Slesser LJ held that D, in procuring the work to be performed by in independent contractors assumed a non-delegable duty to that cinema to ‘use reasonable precautions to see that no damage resulted.’ Further, Honeywell can be distinguished from Salsbury, in which felling a large tree was held not to be extra-hazardously because if done competently, would not pose a danger. In the present case, demolishing a building is more analogous to Honeywell because it is a dangerous activity, even if done with skill. Lady Hale in Woodland held that the law should developed by analogy in a similar way to Caparo, though Cox made clear that recourse to a separate inquiry into whether it would be fair, just and reasonable would be unnecessarily duplicative. Nonetheless, the present case is sufficiently analogous to Honeywell to justify finding a non-delegable duty of A. There may be a claim for vicarious liability against A. Notably, DD is not insured! The recent Supreme Court Case Barclays Bank v Various Claimants reiterates that there is no bright line between when employees and independent contractors. Therefore, we must turn to the five indicators set out by Lord Phillips in Cox. First, the employer must be more likely to have the means of compensating the victim than the employee and can be expected to have insured against that liability. On the facts, we do not know how deep A’s pockets are. Nonetheless, given the dangerous nature of demolitions, we can infer that a would have taken out insurance (even if DD do not have insurance). Secondly, the tort will have been committed as a result of the activity being taken by the employee on behalf of the employer. This condition is clearly satisfied since DD are carrying out the demolition as requested by A. Thirdly, the employee’s activity is likely to be part of the business activity of the employer. Again, the condition is clearly satisfied because A is a property development company and demolitions are an integral part of developing the land. Fourthly, the employer created the risk by employing the employee to carry out the activity. In Armes, Lord Reed noted that there was inherent risk in choosing foster parents which should be shared rather than borne solely by the victims. In the present case, there is inherent risk in selecting a demolition company and the risk should not be borne solely by Chad. Fifthly, the employee will, to a greater or lesser degree, have been under the control of the employer. We know that A was present on the demolition site because Faelyn point Chad to the sign which suggests that they are overseeing the operation. Furthermore, Lord Reed highlighted in Armes that it is ‘important not to exaggerate the extent to which control is necessary’. Thus, in the present case, A has sufficient control and there will be vicariously liable

Answer 108

Both Wheat v Lacon and AMF International v Magnet Bowling are authority for the possibility of there being more than one possible occupier. As Dauntless Demolition exercises ‘control associated and arising from the presence in and use of or activity in the premises’ (Wheat v Lacon, per Lord Pearson), by managing the demolition, they are an occupier. The same considerations as above apply (except there is no question of DD discharging their duty by warning, delegation or exclusion). Once again, DD’s liability would be reduced by Chad’s contributory negligence. Chad may also have a claim in negligence for personal injury against DD, though all the elements must be present. The damage in question concerns physical damage flowing from a positive act. This constitutes a straightforward case of negligence (Donoghue v Stevenson and reaffirmed in Robinson per Lord Reed). In terms of breach, the standard of care is generally that of the reasonable person, defined by Greer LJ as ‘the man on the Clapham omnibus’ (Hall v Brooklands Auto-Racing Club). However, given that DD have an ‘excellent reputation’ amongst property developers, we can infer that they have specialist skill. Therefore, the standard of care is that of ‘the ordinary skilled man exercising and professing to have that special skill’ (Bolam). This has subsequently been qualified by Bolitho, in which the House of Lords held that the body of opinion must be able to withstand logical analysis. In the present case, DD used ‘double the amount of explosives that other contractors would have used’, thus breaching their duty of care, as determined by putting a reasonable explosive specialist in the position of D (Roe v Minister of Defence). Further, Bolton v Stove held that the burden of injury must be less than the gravity of the injury multiplied by the probability that the risk would eventuate. In the present case, the risk of Chad injuring his eye was foreseeable and, although improbable, DD could have taken measures such as ensure the Chad wore protective eye-wear which was not unreasonable given his age and the limit energy that would need to be expended to mitigate the risk. Thus, there would be breach. Physical injury is an established head of damage and there are no issues of causation or remoteness As above, DD will have a defence of contributory negligence which will most likely result in a reduction of damages of 1/2. There are two potential strands to a volenti defence. First, we are told that Chad was made aware of the sign and therefore voluntarily agreed to incur the risk. However, in Morris v Murray, Fox LJ held that ‘the wild irresponsibility [of flying in a small aircraft drunk] was such that the law should not intervene to award damages and should leave the loss to lie where it falls’. In the present case, Chad taking off his goggles (although irresponsible) falls short of the ‘wild responsibility’ of flying in an aircraft drunk since he was in a designated podium for the detonation of the building and his age would mitigate what could reasonably be expected from him. Secondly, Lord Denning clarified in Nettleship that ‘nothing will suffice short of an agreement to waive any claim for negligence’. Given Chad’s age, he will not be able to make such an informed decision to waive all claims for negligence. As discussed above, the exclusion will not be valid. Therefore, Chad will be able to make a successful claim in negligence or OLA.

Answer 109

(i) OLA The question as to whether the 1957 or 1984 act applies turns on whether Goran is a visitor or a trespasser. Per Harvey v Plymouth CC, one may still be a visitor if one reasonably goes beyond the bounds of the permitted premises e.g. in search of a toilet. Gould v McAuliffe also suggested that one may still be a visitor when one goes beyond one’s extent of permission, which Lord Hoffmann in Tomlinson suggested that a trespasser may still be deemed a ‘visitor’ but not afforded protection by OLA 1957, a suggestion that would leave plaintiffs in legal limbo, with neither the protection of OLA 1957 or OLA 1984 – a suggestion thankfully rejected in Fairchild and Keown. On the facts, Goran goes beyond all reasonable bounds of his permission and so is a trespasser, under OLA 1984. The occupier owes a duty if, per s. 1(3) they are (a) aware of the dangers or have reasonable grounds to believe it exists, (b) knows/has reasonable grounds to know that the other is in the vicinity of danger, and (c) the risk is one against which he may be expected to offer some protection. With respects to (a), Herb knows that Goran is on the premises. Consequently, DD knows as it is a company and whether it has notice must be comprised of whether the employees have notice as a company cannot have notice in and of itself. With respects to (b), Evans LJ in the CA in Swain v Nati Ram Puri held that ‘actual knowledge’ would be required, or ‘shut-eye knowledge’. In the present case, there is no such actual knowledge and there is no evidence to suggest that the occupiers wilfully shut their eyes to the possibility of children sneaking in. Rather, the existence of the security shows that they were aware of this risk and had addressed it. With respects to (c), Tomlinson set out a number of factors in assessing if the risk was one against D could be expected to offer protection: (i) likelihood of injury; (ii) seriousness of possible injury; (iii) social value of activity giving rise to the risk; (iv) cost of preventative measures (won’t be given much weight). On the one hand, the likelihood of injury was relatively high, given the dangerous nature of the activity and the fact Edmund used double the explosives that other contractors would have used. The seriousness of the injuries was also high. However, demolition companies are necessary and they already took preventative measures (albeit the security guard was negligent in permitting Goran to enter) to impose stricter requirements with regards to security in the present case than it was on imposing a duty on the hospital in Keown, since the latter case concerned a hospital, and Longmore LJ held that its resources should be allocated to buying equipment and recompensing nurses and doctors. Further, the injury was partially due to the negligence of using twice the explosives and, if Goran is a child, from the negligence of the security guard. Further If the conditions are cumulatively met, then Goran will have a claim for his broken legs but not for any damage to the trousers from the collapsed wall (s. 1(8)). There are no issues of causation or remoteness. On the other hand, given the deception of Goran, it is not clear that expending more money would necessarily mitigate the risk in similar cases. If Goran is an adult, then there would be no breach of duty as the sign would probably be sufficient and the risk would be ‘obvious’, as it was in Tomlinson. The main defence may be contributory negligence.

Answer 110

Ibolya may claim for the psychiatric injury caused by the negligence of DD. First, the psychiatric injury must be medically recognised. PTSD is medically recognised (Leach v Chief Constable of Gloucestershire Constabulary). Secondly, the psychiatric injury is not caused by physical harm to Ibolya (cf Simmons v British Steel), nor the consequence of Ibolya almost being injured by DD (cf Page v Smith). Therefore, she must satisfy the additional proximity requirements for a secondary victim in Alcock: (a) She must show a ‘sufficiently proximate’ relationship to that person, usually described as a ‘close tie of love and affection’. Such ties are presumed to exist between parents and children and, as such, Ibolya would have no issue satisfying this condition. (b) She must be close to the accident both in terms of time and space (Mcloughlin v O’Brian per Lord Wilberforce), which includes the immediate aftermath of the event. In Alcock, the plaintiffs arrived at the scene between 8 and 9 hours after the accident, which Lord Ackner thought was not part of the immediate aftermath. Lord Jauncey agreed and held that the purposes for which the plaintiff comes upon the immediate aftermath was relevant in testing proximity. In Alcock, the plaintiffs went to the scene for the purposes of identifying the body, whereas he reasoned that this was distinct from going within a short time of the accident to provide comfort and care. Although Ibolya does not physically go to the scene to either identify the body or provide care, this is requirement is qualified by third, which covers cases where an individual sees or hears of the scene or its immediate aftermath. (c) Turning to the means of perception, seeing the events on live broadcasting was held not to create the necessary degree of proximity for two reasons. First, none of the scenes depicted the suffering of recognisable individuals (per Lord Keith) since this was prohibited by the broadcasting code of ethics. Secondly, the pictures did not provide the degree of immediacy required to found a claim for psychiatric illness. The trauma arose not from seeing the original viewing of the pictures but in part from the confirmation that the death of the loved one had occurred and in part from the linkage of this confirmation to the images seen earlier (per Lord Oliver). However, the present case can be distinguished because it may be analogous to the Nolan LJ’s example of a simultaneous broadcast of a hot air balloon carrying children bursting into flames (cited by Lord Ackner) as akin to actual sight and hearing of the event or its immediate aftermath, or potentially more distressing. The explosion may have been sufficiently violent to be analogous to the balloon which exploded, since she did see the podium rock. Further, she heard Goran screaming which may have added to the intensity of the experience rendering it akin to actual sight and hearing. On the other hand, in King v Phillips, a mother who heard her child scream from some 70 to 80 yards distance when a taxi backed into him failed to recover. Further, there is no evidence that the scenes depicted the suffering of an identifiable individual (Chad) since the scene was quickly obscured by clouds of dust. Nonetheless, on balance, the law should recognise Ibolya’s claim as failing to do so would be overly formalistic and fail to recognise that, as Nolan LJ had foreseen, certain cases of live broadcasting would be as distressing (if not more given how powerless the mother is) as being physically proximate. (d) In addition, the shock must be a 'sudden' and not a 'gradual' assault on the claimant's nervous system. So a claimant who develops a depression from living with a relative debilitated by the accident will not be able to recover damages. In the present case, the sudden nature of an explosion would most likely satisfy this requirement. (e) Finally, it must be reasonably foreseeable that a person of 'normal fortitude' in the claimant’s position would suffer psychiatric damage. The closer the tie between the claimant and the victim, the more likely it is that she would succeed in this element. A parent of normal fortitude would most likely suffer PTSD from seeing a forceful explosion which rocked the podium which her son was standing on and upon hearing the sound of her other son screaming, even if the images were immediately shrouded by dust clouds. As such, a duty of care between DD and I is established. As discussed above, the duty of care was breached. There are no issues of damage, causation or remoteness and no defences are available. Therefore, Ibolya would have a claim for her psychiatric injury against DD for their negligent demolition of the old building.

Answer 111

John is injured by tripping on a ‘slightly loose step’. Since this injury arises from the state of the premises, there may be a claim for breach of occupier’s liability. The question of whether the 1957 or 1984 Act applies turns on whether John is a visitor or a trespasser. We are told that John snuck in as he did not have a ticket. The very fact that tickets were required for entry suggests that no licence can be implied. Thus, we can distinguish the present case from Lowery v Walker, in which the HL held that D had led members of the public to believe that they were permitted to use a shortcut across D’s land. Therefore, John’s injury must be considered under the 1984 Act. S. 1(2) of the 1984 act defines premises as including ‘any fixed or movable structure’. The ‘arena’ clearly satisfies this. Moreover, ‘occupier’ is given the same meaning as under the 1957 act (per s.1(2)). Thus, turning to common law, it is necessary to show that the school has ‘some degree of control’ over the premises (Wheat v Lacon per Lord Denning). Lord Pearson’s judgement helpfully adds that the courts are concerned with ‘control associated with and arising from presence in and use or activity in the premises’. Thus, if the arena is on the school’s premises, the school is clearly an occupier. If the arena is elsewhere, they may still be an occupier since they organised the occasion in collaboration with the circus and therefore satisfy Lord Pearson’s definition. Further, under Denning’s 5 points, if the school had the power to say ‘come in’, where for example it was a teacher collecting tickets, then there is further evidence that the school is an occupier. Assuming that the school is an occupier, the school owes a duty if per s.1(3) the injury arises by reason of the state of the premises and the occupier is (a) aware of the dangers or have reasonable grounds to believe it exists, (b) knows/has reasonable grounds to know that the other is in the vicinity of danger, and (c) the risk is one against which he may be expected to offer some protection. The injury clearly arises from the loose step rather than how John is using the step (cf Keown and Siddorn v Patel in which the danger was caused by the claimant’s behaviour rather than the state of the premises). In addition, (a) there no evidence to show that the school is or is not aware of the step or that there is any reasonable ground to believe that the danger exists. With respects to (b), Evans LJ in Swain v Nati Ram Puri held that ‘actual’ or ‘shut-eye knowledge’ is required. In the present case, there is no evidence of actual knowledge nor evidence to suggest that the school wilfully shut their eyes to the danger since there is no mention of a previous incident (cf Scott v Associated British Ports). With respects to (c), the HL in Tomlinson set out a number of factors in assessing if the risk was one against D could be expected to offer protection: (i) likelihood of injury; (ii) seriousness of possible injury; (iii) social value of activity giving rise to the risk; (iv) cost of preventative measures. The likelihood of tripping on the ‘slightly’ loose step and falling down the stairs is low. Thus, the seriousness of possible injury is correspondingly low. Little weight should be given to (iii) since the socially useful activity of seeing a circus would not be affected by fixing loose steps, whereas in Tomlinson, the natural beauty of the wild land would be affected if multiple signs and fences were required given the ‘obvious’ nature of the danger in that case. Finally, it would cost very little to fix the loose step. On balance, since (a) and (b) are not met, and many sub-factors within (c) are not met, no duty should arise. There is no breach under s. 1(4), which the Lord Chancellor of the time noted was intended to be pitched as a similar level to that which existed at common law in British Railways Board v Herrington. There, the court held Ds owed a duty of ‘common humanity’, which extended to fixing a gate they knew children had a habit of passing through. ‘Common humanity’ in the present case would not require the school to fix the loose step where there is no evidence of any danger, and where John, who ‘rushes from his seat’, is perhaps to blame for falling over. The only defence that could be raised even if a duty was held to exist and breached, is contributory negligence, per s. 1(1) Law Reform (Contributory Negligence) Act 1945. Jackson v Miller held that we must take into account the fault and causal potency of the individual. Since he is an adult who ‘rushed, we can argue that he was largely to blame for the accident. This argument is made stronger by pointing to the fact that everyone who is walking normally has not injured themselves, which would significantly reduce damage even if they were awarded.

Answer 112

Ines may have a claim under the OLA 1957 because we are told that her psychiatric injury may stem from seeing her fiancé harm themselves because of the state of the premises. On the one hand, OLA 1957 does not specifically refer to impairments of a mental condition; it imposes a duty on an occupier to see that his visitor will be ‘reasonably safe’. On the other hand, s. 1(9) OLA 1984 defines damage as including ‘any impairment of physical or mental condition’. Therefore, if we construe the OLA 1957 duty to keep reasonably safe as covering mental injury, then it would appear that no common law restrictions (Alcock) could be imposed limiting those entitled to recovery. An argument in favour of construing ‘reasonably safe’ as encompassing protecting from psychiatric injury is that otherwise trespassers would have better protection than visitors. Therefore, it is right claim psychiatric injury under the 1957 OLA. There is no case law on this point but the Alcock requirements should not be imported since this would go against the statutory language in the OLA that it is intended to replace the rules on common law duty of care. The fact that this undermines the restrictions in Alcock may be weakened as an argument because the restrictions in Alcock are a response to the concerns of the indeterminacy of the number of potential claimants. Yet, in the case of occupier’s liability, the occupier is aware of the scope of their liability since the number of possible claimants is determinable, and so it would be possible for the circus to get the necessary insurance. The more conventional claim would be one under normal negligence rules as a secondary victim. First, Ines must show that she is ‘suffering not merely grief, distress or any other normal emotion, but a positive psychiatric illness’ (Mcloughlin v O’Brian per Lord Bridge). Depression is a medically recognised psychiatric illness and in Hinz v Berry Lord Denning awarded damages for depression. Secondly, the psychiatric injury is not caused by physical harm to Ines (cf Simmons v British Steel), nor the consequence of Ines almost being injured by the event (cf Page v Smith). Therefore, she must satisfy the additional proximity requirements for a secondary victim in Alcock: (a) She must show a ‘sufficiently proximate’ relationship to that person, usually described as a ‘close tie of love and affection’. In Alcock, Lord Keith thought that the closeness of the tie could be presumed between fiancées. Such a presumption could be rebutted where the relationship proves to be one in which cannot be properly characterised as caring. (b) She must be close to the accident both in terms of time and space (Mcloughlin v O’Brian per Lord Wilberforce), which includes the immediate aftermath of the event. As she is physically present she witnesses the clearly witnesses the immediate aftermath. (c) Turning to the means of perception, she both saw and heard the event so clearly satisfies the requirement that she ‘witness the event through [her] own unaided senses’ (Alcock). (d) In addition, Ines’ psychiatric injury must have been caused by a shocking event, ‘the sudden appreciation by sight or sound [of which] violently agitates the mind’ (per Lord Ackner in Alcock). It is necessary that the accident is immediately horrific. In Taylorson v Shiedness Produce Ltd, the plaintiffs failed in their claim for damages because the parents only caught a glimpse of the child as he was taken by an ambulance into intensive care eventually the life support machine was switched off. The illness was attributed to a sequence of events over an extended period of time. Thus, in the present case, it is necessary the Ines saw John and the immediate shock before he was carried away by an ambulance. (e) Finally, it must be reasonably foreseeable that a person of 'normal fortitude' in the claimant’s position would suffer psychiatric damage. The closer the tie between the claimant and the victim, the more likely it is that she would succeed in this element. A person of ‘customary phlegm’ could foreseeably suffer from depression from seeing their partner harm themselves from falling down the stair and incurring ‘serious head injuries’ and permanent brain damage. Turning to causation, the ‘but for’ test will fail. Ines must show that there is more than a 50% likelihood of the cause being the breach of duty by D. Given that the psychiatrist has held that her depression ‘might equally be attributable’ to three different causes, each cause falls below the necessary 50% threshold. Fairchild will not apply because there is no single agent which causes the harm. However, Ines may rely on material contribution. In the recent CA case BAE, Underhill LJ favoured the approach taken by Lady Hale in Hatton of apportioning liability over the Smith LJ’s in Dickens, who in a subsequent article questioned whether it was scientifically possible to apportion damages for psychiatric injury and that it was contrary to the eggshell skull rule. However, Underhill LJ’s approach reflects the corrective justice nature of tort law, in that requiring defendants to pay for a claimant’s entire injuries when there were other contributing factors would be to overcompensate the claimant. This is subject to the qualification that where there is no such rational basis, then the injury will be ‘truly indivisible’ and the defendant will be responsible to compensate for the entire injury. One set-back from this approach is that it may lead to more drawn out litigation as lawyers fine-tooth comb through medical law records. Notwithstanding this criticism, under the current law, the most likely approach the courts will take is to first reduce the damages from Ines’ break-up with Karl (i.e. 1/3). The remaining injury will be truly divisible and school and circus (depending on who had control over the premises and thus who was ultimately negligent) will be ordered to pay the entirety of the compensation owed to Ines for the whole of the injury. There are no issues of remoteness, damage or defences. Therefore, Ines’ claim would succeed, though would be reduced to account for her vulnerability having broken up with her partner.

Occupiers' Liability Flashcards

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