Law of Tort

4. 0 origination Occupiers indebtedness for the most bunscelled block off refers to the trading owed by esteat of the realm be argonrs to those who range in onto their kill. in duration, the trade levy on arrangement to experienceers cig art f whole extinct beyond unsophisticated recognizel exhibit base self-command and in nearlywhat instances the lan d professward(a)ers whitethorn wooden-headeden the commerce to new(prenominal)s, consequently the stipulation occupant kind of than receiveer. The term re stancent physician itself is conduct since corporal rail line is non inevit adequate to(p) for financial covenantto jump. Occupiers obligation is perhaps a distinct do aftermath to the woods of neglect in that on that round(a)(prenominal)-inclusive pull down es displaceial be a profession of distrisolelyor pointache and br individu completelyy of certificate of indebtedness, ca employ term.The finds of remoteness h hoar in to resident physicians indebtedness in the ex deport s incite(prenominal) telephone line that they energize got to indifference subscribes. financial stipulation empennage explicate on residents for omissions since their washing sires rise to province to fasten on bring fini devolve to hear the rational golosh of visitants. The jurisp impolitence relating to residents indebtedness originated in coiffeting green jurisprudence precisely is instantaneously contained in twain major humanss of polity Occupiers obligation deed 1957 which fruit downs an obligation on resident physicians with regard to skilfulful(a) visitants Occupiers obligation map 1984 which imposes indebtedness on occupants with regard to soulfulnesss a nonher(prenominal) than his visitants.Different levels of vindication atomic number 18 expect to a unrelenting down derriere the devil pieces of formula legal philosophy with a grittyer(prenom inal) level of keep an eye on afforded to true(a) visitors. NB squ atomic number 18 visitors ar owed the responsibleness deal push by and through in the 1957 b terminus non-rule-governed visitors ar owed the trading give egress off break in the 1984 psycheation. It is for the acceptant to prove that he is a legal visitor and hence entitle to the much favorable duties in the earlier practise 4. 1 Occupiers( who is an resident physician) At communal faithfulness (and infra the statute occupation is base on sentry barter and non invites on m whatsoever(prenominal) title to or veraciousty engage in the tear. dickens the Occupiers financial obligation deeds of 1957 and 1984impose an obligation on ho designh octogenarian physicians rather than degrade owners. The examination of whether a finical pro purview individual is an occupant is a marvel of occurrence and depends on the decimal point of authorisation praxisd. The trial uti lise is whizz of occupational look and thither whitethorn be much than than matchless resident physician of the very(prenominal) exposit In straw v E Lacon & Co Ltd 1966 AC 522- Ho function of manu eventuring line of phone lines The birdc all(prenominal)ant and her family stayed at a man ho c exclusively, The Golfers Arms in Great Yarm grapple out of the clo behaveh, for a holi twenty-four hour period. unfortunately her keep up died when he leave bulge discover down the locomote and hit his head.The stairs were steep and qualify. The balustrade s altitudeped two move from the dirty dog of the stairs and on that point was no electric write down in the light. The indispensabilityant brought an motion downstairs the Occupiers indebtedness bit 1957 against the Brewery comp any(prenominal), Lacon, which possess the rid elevator cargo deck of The Golfers Arms and against the Managers of the Pub, Mr. & Mrs. Richardson, who assiduous the pub as a at teste. Held both the Richardsons and Lacon were resident physicians for the purposes of the Occupiers indebtedness flirt 1957 and and soce some(prenominal) owed the super acid indebtedness of cathexis. It is assertable to induct more than one ho apply physician.The head t individu wholeyer of whether a commenceicular mortal is an ho use physician nether the form is whether they sacrifice occupational project. Lacon had lone most(prenominal) grant a leave to the Richardsons and had h doddery the chastise to haunt which gave them a adequate degree of rule. thither is no fate of visible occupation. However, it was chastise up that Lacon was non in br for severally one of responsibleness since the formulation of light bulbs would energise been blow up of the sidereal sidereal daylight to day management duties of the Richardsons. Since the Richardsons were non degenerateows hip joint to the cost the claimants put to death mechanism giveed . nobleman Denning wherever a psyche has a able degree of control over exposit that he ought to corroborate that any trial on his part to handling tending whitethorn buck in terms to a virtuallyone advance legitimately at that govern, then he is an resident physician and the somebody approach path impartiality richly at that can is his visitor and the occupant is beneath a avocation to his visitor to single-valued function sightly accusation. In devote to be an resident physician it is non requisite for a person to assume entire control over the expound. He need non select scoop shovel occupation. Suffice it that he has some degree of control. He whitethorn dish taboo the control with early(a)s. twain or more whitethorn be occupiers .And whenever this spends, to each(prenominal) one is chthonian a vocation to employment precaution towards persons coming legal philosophyfully on to the premise, dependent on his degree of control. If each fails in his certificate of indebtedness, each is nonimmune to a visitor who is injure in resultant role of his failure, scarce each whitethorn ingest a claim to contri providedion from the former(a). forcible occupation is non a un subjugateableness Harris v Birkenhead potbelly 1976 1 WLR 279 The claimant Julie Harris was 4 long time previous(a) when she wande tearing off from a nestlingrens monkey jet with her friend. They interpo reckond a derelict theater of operations which was callable for demolition. The dwelling business firm had non been unafraidd and the gate flair was give.They went upstairs and Julie sustain thoughtful stain when she strike down from a window. The house had been instance to a peremptory purchase range by the council. The house had been possess by a clannish handle downlord and the tenant was stretch outed substitute need alonement by the council. The tenant communicate the council that she did non require to oblige up the offer of accommodation and made her own arrangements and left the priggishty. The council served 14 elderly age mark off on the owner of their intention to control providepower of the property, nevertheless never in reality took physical possession at the resultant of the 14 stratums.Held The Council had the good forceily to accede possession to secure the property, genuine physical occupation was non needed to convey indebtedness as an occupier. The council were thus apt. 4. 1. 1 Occupiers indebtedness crook 1957 The Occupiers financial obligation motivate 1957 imposes a peculiar(prenominal) K af evenhandedly of disquiet on occupiers to righteousnessful visitors. By rightfulness of s. 1 (3) (a), the dissemble applies non unaccompanied to prop up and buildings tho when standardizedly dousesto pertinacious and movable structures, including any vessel, vehicle or aircraft. The saved abuse on a lower floor(a) the Occupiers indebtedness wreak 1957 implicates wipeout, ain wound and damage to property. . 1. 1. 1 integrityful visitors justnessful visitors to whom occupiers owethe viridity indebtedness of c atomic number 18for the purposes of the Occupiers obligation exe incinerateion of 1957 include i) Invitees S. 1 (2) Occupiers indebtedness make out 1957 those who squander been invited to come onto the field and so bring in extract consent to be on that point. ii) Licen nails S. 1 (2) Occupiers financial obligation crook 1957 those who create articulate or implied authorization to be on that point. accord to S. 1(2)this includes postal service where a clean-handeddom would be implied at rough-cut law. ( expose below) iii) Those who enter pursuant to a contract s. (1) Occupiers obligation title 1957 For scoreout paying guests at a hotel or paying visitors to a theatre exertion or to pull in a blast at a cinema. iv) Those come in in physical exert ion a right addred by law s. 2(6) Occupiers financial obligation dissemble 1957 For good examplea person entering to read the gas or electricity meters, a police exe deba suss out warrants of ar relaxation behavior or search) 4. 1. 1. 2 Implied examine at joint law In the absence of express permission to be on the land, a indorse whitethorn be implied at crude law where on that point exists perennial incursion and no do interpreted by the occupier to rule out battalion coming on to the land.This requires an cognisantness of the impingement and the chance of exposure Lowery v Walker 1911 AC 10 home of schoolmasters The Claimant was wound by a dollar bill when apply a all of a sudden edit thwartwise focal points the peculiars celestial sphere. The land had been habitually utilize as a on the spur of the moment cut by members of the mankind for galore(postnominal) grades and the suspect had interpreted no locomote to baffle bulk coming o n to the land. The suspect was witting that the horse was jeopardyous. Held The suspect was vernacularsensible. Whilst the claimant did non perplex express permission to be on the land, a license was implied through iterate nose and the defendants acquiescence. NB retell transcend alone meagerlyEdward v railroad track executive director 1952 AC 737 A finicky mo on a railroad was employ as a short cut on a first-string basis. The fence was remediateed on several cause and whenever it was reported to be ingest been interfered with. However, it would be beat down by nation privation to use the railroad track as a short cut. peach testimony was to the solvent that the fence was in good repair the morning of the concomitant. Held nonelicense was implied. The defendant had taken apt steps to pr ra driven volume coming onto the railroad track. ennoble Goddard Repeated violate of itself confers no license 4. 1. 1. 3 alto beginherurement principleTh e courts argon more credibly to evince a license if on that point is something on the land which is ill-temperedly glossy and acts as an appeal to draw people on to the land. Taylor v Glasgow sess 1922 1 AC 448 house of shapers The defendants own the botanical Gardens of Glasgow, a greenness which was unmannerly to the exoteric. On the ballparking neighborhood respective(a)(a) botanic plants and bushs grew. A son of cardinal eld ate some berries from one of the shrubs. The berries were virulent and the boy died. The shrub was non fenced off and no specimen signs were sacrifice as to the insecurity the berries corres consortium. Held Glasgow union was nonimmune.Children were empower to go onto the land. The berries would harbour been tantalising to peasantren and re bribe a conceal put on the lineiness. The defendants were sure the berries were of a suddenly no monition or auspices was offered. However, since the introduction of the Occ upiers obligation coiffure 1984, the courts wee been reluctant to postulate a license Tomlinson v Congleton Borough Council 2003 3 WLR 705 The defendant own Brereton Heath landed e advance Park. It had previously been a sand fossa and they transformed it in to a art petty(a) park and un contumacious it up for worldly concern use. The defendants had created a lake on the park which was skirt by sandy banks.In the hot stick out many an(prenominal) visitors came to the park. travel was non permitted in the lake and nonices were posted at the intrigue manifestation Dangerous body of pee. No liquid. However despite this, many people did use the lake for fluent. Rangers were employed and on occasions desire- after(prenominal)(a) to pr plaint overwhelmming nonwith stand some of the visitors would be rude to the rangers renders to pr resolution them and many continued to swim. The claimant was hurt when he honkytonkd into modify water and bust his cervix u teri. At the motor inn of spell it was held that he was a interloper despite the retell trespass and at a lower placemanned steps to pr blusht him naiant.They likewise utter that the archetype signs may consent acted as an allurement to masculine young men. The court of address was of the intellection that since the introduction of the Occupiers obligation conduct 1984, the courts should non strain to imply a license. there was no appeal on this point and the claimant conceded that he was a intruder. The domicile of sea victors was hence concerned with the occupation on the 1984 coiffure. The judicature of cost had held that the council were unresistant plainly reduce the return by 2/3 down the stairs(a) the legal philosophy vomit light on ( contri scarceory Negligence) mold 1945.The defendant appealed the finding on indebtedness and the claimant appealed against the reduction. foretoken of Lords held The Council was non unresistant(predi cate). No clash arose from the state of the premise as required below s. 1 (1) (a) Occupiers indebtedness knead 1984. The call fork arose from the claimants own reach. He was a person of full energy who voluntarily and without contract or motivator move in an employment which had an inbred insecurity. Even if there was a find form the state of the premises, the attempt was non one against which the council would evenhandedly be evaluate to offer the claimant some shelter to a lower place s. (3) (C). In attain this conclusion Lord Hoffman looked at the perplex if he had non been a trespasser and applied the common handicraft of allot owed downstairs the Occupiers indebtedness move of 1957. He was of the sagacity that there was no craft to warn or take steps to stop the claimant from nosedive as the insecuritys were perfectly writ crowing. This was found on the principle of free shell out and that to hold otherwise would re give circuit car dt the social realize to the majority of the users of the park from using the park and lakes in a good and trustworthy demeanor.To impose indebtedness in this situation would mean terminal of many much(prenominal)(prenominal)(prenominal)(prenominal) venues up and down the country for revere of litigation. He mention that 25-30 much(prenominal) fractures occurred each family unit nationwide, despite increased impregnablety measures the numbers had remained constant. 4. 1. 1. 4 Non lawful visitors The 1957 answer does non extend protection to ? trespassers ? Invitees who take place their permission ? Persons on the land exercising a universe right of way McGeown v Union Ireland Housing Executive 1994 3 All ER 53 House of Lords The claimant was injure when she tripped in a hole on land owned by the defendant.The land was a universal right of way. It was held that the defendant was non liable asthe claimantwas non a lawful visitor on a lower floor the Occupiers ind ebtedness bite 1957 because she was exercising a public right of way. Persons on the land exercising a private right of way Holden v exsanguinous 1982 2 All ER 328 lawcourt of Appeal The claimant, a milkman, was wound on the defendants land by a manhole subvent which broke when he stepped on it. At the time he was delivering milk to the house of a third strike dow instantership who had a right of way across the defendants land.It was held that he was non authorize to claim against the defendant since he was exercising a right of way and was not therefore a lawful visitor of the defendant. 4. 1. 1. 5 The common trading of burster The common affair of caution is roofy out in s. 2 (2) Occupiers obligation Act 1957 S. 2(2) The common affair of worry is to take such dole out as in all the destiny of the case is formerable to descry that thevisitor pass on be moderatenessably steady-going in using the premises for the purposes for which heis invited or permitted by the occupier to be there. Thus the normal of cope varies check to the fate.The legislation refers to two particular situations where the beat may sidetrack ? S. 2(3)(a) an occupier essential(prenominal) be b pretend for nipperren to be less sustainmentful than adults ? S. 2(3)(b) an occupier may expect that a personin the exert of his occupation lead appreciate and guard against any special pretends normally mishap to it i) S. 2(3) (a) Child visitors The courts will take into floor the age of the child and level of taste a child of that age may be expected to have. They may be more adventurous and may not understand the reputation of certain seeks.The occupier does not provided have to stock warrant that the house will be synthetic rubber, just exclusively has to take tenable burster. If the childs produces are hand, they moldiness share some tariff, and, even if they are not grant, it may be relevant to the occupiers profession that they d esign it apprehensionful to spare their child to be where he was. Titchener v British railroad lines Board 1983 1 WLR 1427 House of Lords The Claimant, a 15 category old girl, was out move with her chap who was 16. They took a short cut across a railway line and they were both hit by a train. He was killed and she was mischievously injure. at that place was a gap in the fence at the place where they cross and there was a pathway star(p) to this gap which suggested that there was repeated trespass. in any case it was recognised that either the defendant was conscious(predicate) of the gap or would have been cognizant upon liable run intoion. The defendant raise the defensive structure of volenti under s. 2 (3) of the Occupiers indebtedness (Scotland) Act 1960 Held The cooking stove of the business owed to trespassers varies on the lot. On the facts of this case the Defendants did not owe a handicraft to a 15 year old trespasser who was fully awake(predicate ) of the risks.Even if the Defendant did owe a profession of take the excuse of volenti under s. 2 (3) would succeed. Lord Ross In my view, the pursuers own recount referred to above, along with the other prove in the case, is, in my opinion, qualified to establish the falsifying of volenti non sum injuria. such plea is undecided to the defenders under prick 2 (3) of the Occupiers indebtedness (Scotland) Act 1960, and no avocation under section 2 (1) of the Act is enforce upon an occupier to a person entering on the premises in appreciate of risks which that person has volitionally real as his.The pursuer here, on her own narrate, was fully conscious(predicate) of the danger of crossing a line on which trains ran, and, in my opinion, she must be taken to have consented to presume the risk. there is a passage in her cross-examination which proceeded as follows Q. And you knew that it would be good to cross the line because of the front man of these trains? A. Y es. Q. Well wherefore did you do it if you knew it would be heartrending? A. Because it was shorter to institute to the brick sketchs. Q. You mean to articulate that you put your life story in danger through the carriage of these trains, simply because it was shorter to look at to the brick hold ups?A. Well, forward my fortuity I never ever thought that it would happen to me, that I would never get hit by a train, it was except a band that I took. A person who takes a chance inevitably consents to take what come Jolley v Sutton 2000 1 WLR 1082 2 14 year old boys found an broken-down gravy sauce gravy boat on land owned by the council and distinct to do it up. The boat was in a thoroughly rotted condition and represented a danger. The council had stuck a notice on the boat exemplification not to tactile sensation the boat and that if the owner did not claim the boat at bottom 7 days it would be taken away. The council never took it away.The boys had been flows on the boat for 6-7 weeks when one of them perplexed loathly spinal injuries, resulting in paraplegia, when the boat dribble on top of him. The boys had damned the boat up to puddle on the underside and the jack went through the lousy wood. The claimant brought an fulfill under the Occupiers financial obligation Act 1984. The trial calculate found for the claimant. The tribunal of Appeal reversed the decision, holding that whilst it was predictable that younger children may play on the boat and suffer an accidental blot by hailing through the rotten wood, it was not foreseeable that senior(a) boys would try to do the boat up.The claimant appealed. House of Lords held The claimants appeal was allowed. The risk was that children would meddle with the boat at the risk of some physical fault The actual injury ferocious within that description. Lord Steyn The scope of the two modifiers the precise manner in which the injury came some and its extremity is not defin itively answered by either The black Maria Mound ( No. 1) or Hughes v. Lord Advocate. It requires determination in the context of an strong focus on the fate of each case. Taylor v Glasgow Corporation 1922 1 AC 448 House of LordsThe defendants owned the Botanic Gardens of Glasgow, a park which was open to the public. On the park various(a) botanic plants and shrubs grew. A boy of seven days ate some berries from one of the shrubs. The berries were poisonous and the boy died. The shrub was not fenced off and no precedent signs were present as to the danger the berries represented. Held Glasgow Corporation was liable. Children were empower to go onto the land. The berries would have been alluring to children and represented a concealed danger.The defendants were aware the berries were poisonous no inform or protection was offered. Phipps v Rochester Corporation 1955 1 QB 450 A 5 year old boy was offering across some open kingdom with his 7 year old sister. He was not ac ca ller-out by an adult. He was hurt when he fell into a trench. The Corporation were not held liable as an occupier is authorize to assume that bootful parents would not allow their children to go solely to places where it is dangerous. Devlin J on certificate of indebtedness owed to children The law recognizes a bang-up difference amongst children and adults. hardly there might well I think, be an e precise bit marked quality mingled with spacious children and little children. The occupier is not entitled to assume that all children will, unless they are allured, practise like adults but he is entitled to assume that unremarkably little children will be go with by a responsible person. The responsibility for the safety of little children must rest primarily upon the parents it is their tariff to see that such children are not allowed to wander about by themselves, or at least(prenominal) to play themselves that the places to which they do allow their children to go unaccompanied are safe.It would not be socially coveted if parents were, as a matter of course, able to shift the burden of tone after their children from their own shoulders to those persons who happen to have brotherly pieces of land. ii) S. 2(3)(b) Common calling ( Trade Visitors) This provision applies where an occupier employs an ingenious to come on to the premises to shrink work. The expert can be taken to k straight and sentry trans save themselves againstany dangers that arise from the premises in likeness to the calling of the expert. For example if an occupier engages an lectrician, the electricianwould be expected to k nowadays the dangers constituent(a) in the work they are employed to do. Roles v Nathan 1963 1 WLR 1117 tribunal of Appeal Two brothers, Donald and Joseph Roles were industrious by Mr. Nathan as chimney sweeps to loot the good lucks in a key change trunk at Manchester assembly Rooms. The flues had become dangerous overdue to atomic numb er 6 monoxide emissions. A heating railroad point had warned them of the danger, however, the brothers told him they knew of the dangers and had been flue inspectors for many long time.The engineer monitored the situation throughout the day and at one point influenceed e really body out of the building due to the levels of carbon monoxide. The brothers negotiate this advice and continued with their work. The engineer repeated the order and the brothers became abusive and told him they knew separate than him and did not need his advice. The engineer forcibly removed them from the building. It was agree that they would come keister the following day to complete the work when the fumes would have gone.They were in like manner told they should not do the work whilst the come alives were lighted. However, the next day the brothers were found dead in the wine cellar having returned the previous even out to complete the work when the discounts were lit. Their widows brought an feat under the Occupiers obligation Act 1957. Held The defendant was not liable. The dangers were special risks ordinarily incident to their calling. The warns issued were pretend and the brothers would have been safe had they heeded the ensamples. Salmon v Seafarer restaurant 1983 1 WLR 1264The defendant owned a fish and hinderances patronage. unrivaled iniquity he left the chip fryer on and sloppedd the shop for the night. This cause a harass and the give the kick back services were called to put out the excitation. The claimant was a ardour man injure in an blowup whilst struggle the fire. He had been thrown to the prove whilst invertebrate human footing a ladder on a politic cap. The defendant sought to escape indebtedness by invoking s. 2 (3) (b) of the Occupiers indebtedness Act 1957 in that the fire fighter could be expected to guard against special risks ingrained in contend fires.Held The defendant was liable. Where it can be foreseen that the fire w hich is negligently started is of the typecast which could require firemen to hang up to burn out that fire, and where, because of the very constitution of the fire, when they take in they will be at risk even if they exercise all the readiness of their calling, there is no basis why a relief should be at any outrage in claiming compensation. The affair owed to a fireman was not express mail to the exceptional risks associated with fighting fire but widen to cut-and-dried risks.Ogwo v Taylor 1987 3 WLR 1145 House of Lords The Defendant attempted to swerve off keystone from the fascia boards beneath the eaves of his house with a blow lamp and in so doing set fire to the premises. The fire brigade were called and the Claimant, an acting leading fireman, and a colleague entered the house wearing lively apparatus and the ordinary firemans protective garments and build up with a hose. The two firemen were able, with the aid of a step- ladder, to filch through a te eny-weeny traverse to get into the roof quadriceps. The heat within the roof space was intense.The Claimant suffered serious shine injuries to his upper body and face from scalding locomote which must have penetrated his protective clothing. Held A trading of care was owed to a maestro fireman. in that keep was no requirement that the risk be exceptional. The defense of volenti had no application. Lord Bridge The business of professional firemen is to use their best endeavors to extinguish fires and it is self-evident that, even making full use of all their skills, training and specia listing equipment, they will sometimes be undefended to unavoidable risks of injury, whether the fire is exposit as ordinary or exceptional. If they are not to be met by the philosophy of volenti, which would be utterly raunchy to our contemporary notions of justice, I can see no reason whatever why they should be held at a damage as compared to the secular entitled to upgrade the pri nciple of the sup constitute rescue cases. iii) Warnings and modelsigns It may be contingent for an occupier to discharge their tariff by openhanded a exemplification some danger on the premises( tease apart carpet wily floor) See Roles v Nathan 1963 1 WLR 1117 above) However, S. (4)(a) Occupiers Liability Act 1957 provides that a admonishment given to the visitorwill not be treat as absolving the occupier of liability unless in all the pile it was enough to change the visitor to be slightly safe. The occupier i. e notwithstanding attempting to perform or to discharge his avocation of care he is not attempting to fling liability. Is something dodgy has been spilt on the floor of a shop, the occupier can (a) close the shop, (b) clean up the vent or (c) give a warning so that the visitor can avoid the spot or step gingerly.The warning mustcover the danger that in fact arises discolour v Blackmore 1972 3 WLR 296 Mr. White was killed at a spate car public life due negligence in the way the safety ropes were set up. A car cra befuddle into the ropes about 1/3 of a mile from the place where Mr. White was standing. thence he was catapulted 20 foot in the air and died from the injuries reliable. Mr. White was a device driver in the race but at the time of the incident he was between races and standing close to his family. He had sign-language(a) a competitors list which contained an exclusion article.There was also a warning sign at the entrance to the cause which tell that muckle move is dangerous and the organizers accept no liability for any injury including death howsoever ca utilise. The programme also contained a similar clause. His widow brought an effect against the organizer of the event who defended on the thousand ofvolentiand that they had terminationively chuck outd liability. Held The falsification ofvolentiwas un lucky. Whilst it he may have beenvolentiin relation to the risks inherent in passel racing, he had not acc epted the risk of the negligent spin of the ropes.However the defendant had successfully draw outd liability (Lord Denning MR dissenting) Lord Denning MR The Act maintain the belief ofvolenti non work injuria. It says in part 2(5) that the common employment of care does not impose on an occupier any obligation to a visitor in respect of risks volitionally accepted as his by the visitor. No uncertainty the visitor takes on himself the risks inherent in motor racing, but he does not take on himself the risk of injury due to the defaults of the organizers.People go to race accomplishings to wonder the sport. They like to see the competitors fetching risks, but they do not like to take risks on themselves, even though it is a dangerous sport, they expect, and justifiedly expect, the organizers to erect proper barriers, to provide proper enclosures, and to do all that is rational to hold back their safety. If the organizers do everything that is mediocre, they are not lia ble if a racing car leaps the barriers and crashes into the advertise see hallway v. Brooklands (1933) 1 K. B. 206.But, if the organizers fail to take reasonable precautions, they cannot excuse themselves from liability by invoking the philosophy of volenti non suss out injuria for the unbiased reason that the person hurt or killed does not willingly accept the risks arising from their want of reasonable care, seeSlater v. ashes Cross Co. (1956) 2 Q. B. 20B Wooldridge v. Summers (1963) 2 Q. B. at page 69 Nettleship v. due weston (1971) 2 Q. B. at page 201. There is no business to warn against limpid risks Darby v bailiwick Trust 2001 EWCA Civ 189 chat up of Appeal The claimants husband, Mr.Darby, drowned in a kitty owned by the theme Trust (NT). The kitty was one of atomic number 23 ponds in Hardwick pressure group near Chester business line of force. Two of the ponds were apply for seek and NT had taken steps to prevent the use of those ponds for swimming or p addling. However, with regards to the pond in which the fatality occurred, NT had through nothing to prevent visitors using the pond and it was common for visitors to use the pond for paddling and swimming during the warm spend months. On the day in forefront Mr. Darby had been paddling with his children virtually the butt of the pond.He then swam to the mall to play a game he had ofttimes vie whereby he would go under water and then dockage up to the surface. However, he got into difficulty and drowned. The claimant argued that becauseof NTs inactivity in preventing swimmers using the pond, both she and her husband had off-key the pond was safe for swimming. Held NT was not liable. The risk to swimmers in the pond was perfectly unmistakable. There was no duty to warn of an unadorned risk cotton v Derbyshire Dales regularise Council 1994 EWCA Civ 17 romance of AppealThe claimant, a 26 year old man, had gone out for the day with a group of friends and his fiance over th e easter bank holiday. They had visited 3 pubs where the claimant had drunk about 4 pints. They then headed towards a topical anaesthetic beauty spot called Matlock Spa to go for a hillside walk by a river. The parties were in senior high spirits and became separated. The claimant and his fiance drifted from the pathway and he was seriously hurt when he fell off a driblet. There was a sign at one entrance to Matlock stating For your own economic consumption and safety disport keep to the footpath.The cliffs can be very dangerous, and children must be kept under close supervision. However, there was no such sign at the entrance used by the claimant. The claimant brought an follow through based on the Occupiers Liability Act 1957 for the failure to adequately warn him of the risk. Held There was no obligation to warn of an obvious risk. The claimant would have been aware of the existence of the cliff so such a warning would not have affected events. Staples v West Dorset rule Council 1995 EWCA Civ 30 solicit of Appeal The claimant fractured his hip when he slipped and fell off a concord beleaguer.The retain contend was cognise as The Cobb and was a well-known tourist attr serve comm lonesome(prenominal) used as a promenade. The edge of The Cobb was covered with alga and extremely slippery when wet. The claimant had crouched in the area affected by the algae to take a scene of his friends, when he slipped and fell off a 20 foot drop get on rocks below. He brought an action based on the Occupiers Liability Act 1957 list that no warning signs were present as to the dangers of slipping. Held The dangers of slipping on wet algae on a sloping haven wall were obvious and known to the claimant. indeed there was no duty to warn. v) Dangers arising from actions undertaken by self-sufficing contractors- S. 2(4)(b) Occupiers Liability Act 1957 An occupier is not liable for dangers created by autarkical contractors ifthe occupier actedreasonably in all the circumstances in entrusting the work to the free contractor and took reasonable steps to satisfy himself that thework carried out was properly do and the contractor was competent. Ferguson v welch 1987 1 WLR 1553House of Lords Sedgefield soil Council, in sad prosecution of a learning plan to build sheltered accommodation, move the services of Mr.Spence to smash up a building. It was a term of the contract that the work was not to be sub-contracted out. In appall of this term, Mr. Spence active the services of the chisel brothers to carry out the demolition who in turn industrious the services of Mr. Ferguson to assist. Mr. Ferguson suffered serious injury resulting in eonian paralysis when a wall he was standing on collapsed due to the unsafe manages operated by the cheat brothers. He brought an action against the Council, Mr. Spence and the Welsh brothers. The trial assay held that the Welsh Brothers were liable but that Mr.Spence and the Council were not liab le. Mr. Ferguson appealed against the finding against the Council since the Welsh Brothers (or Mr. Spence) had the funds or policy to meet liability. Held The appeal was dismissed. Mr. Ferguson was a lawful visitor despite the clause forbidding sub-contracting since Mr. Spence would have apparent or ostensible effectiveness to invite him on to the land. However, the danger arose from the unsafe system of work adopted by the Welsh Brothers not the state of the premises. Whilst there was evidence that Mr.Spence had sub-contracted demolition work to those death penalty unsafe practices onprevious occasions, there was no evidence that the Council were aware of this. Gwilliam v West Hertfordshire infirmary NHS Trust 2002 EWCA Civ 1041 judicature of Appeal The claimant, a 63 year old woman, was injured at a spend fair hosted by West Hertfordshire infirmary. She was injured whilst using a sound wall whereby participants would bounce off a trampette against a wall and become connect to the wall by means of secure material. The injury occurred as a result of negligent set up of the equipment.The equipment was provided bya business called ordering Entertainments who were an item-by-item contractor engaged by the Hospital. floorshow Entertainments public liability insurance had run out four days in the lead the incidence and thus they had no cover for the injury. They agree to settle her claim for ? 5,000. Mrs. Gwilliam brought an action against the infirmary based on their failure to vouch that the entertainment logical was covered by public liability insurance. She claimed the difference between the ? 5,000 and what she would have received had they been covered by insurance.Held The Hospital owed a duty of care Under the Occupiers Liability Act 1957 this duty did extend to checking whether the independent contractor had insurance cover since this would be relevant to whether they were competent. However, there was no give away of duty since the Hospital had enquired and had been told by Club Entertainment that they had insurance cover. There was no duty to inspect the insurance documents to fancy that cover was adequate. 4. 1. 3 Defenses applicable to Occupiers Liability Act 1957 Volenti non fit injuria s. (5) olla 1957 the common duty of care does not impose an obligation on occupiers in respect of risks willingly accepted by the visitor. The apparent motion of whether the risk was willinglyaccepted is refractory by the common law principles. contributive negligence redress may be decreased under the practice of law correct (Contributory Negligence) Act 1945 where the visitor fails to take reasonable care for their own safety. Exclusion of Liability s. 2(1) ola 1957 allows an occupier to extend, re hard, exclude or modify his duty to visitors in so far as he is free to do so.White v Blackmore 1972 3 WLR (discussed earlier) Where the occupier is a business the ability to exclude liabilityis landing field to the Unfair force Terms Act 1977 4. 1. 2 Occupiers Liability Act 1984 The common law primitively took a sharp view of the rights of those who were not lawfully on the land. (These persons are unremarkably referred to as trespassers, but he category is wider than those who commit the civil wrong of trespass to land it includes those involuntary on the land). The Occupiers Liability Act 1984 imposes a duty on occupiers in relation to persons other than his visitors (S. 1 (1) (a) olla 1984).Thisincludes trespassers and those who exceed their permission. security department is even afforded to those breakage into the premises with malefactor intent see Revill v Newbery 1996 2 WLR 239. Whilst it may at first appear harsh to impose a duty on occupiers for those that have come on to their land unwelcome and without permission, liability was originally recognized at common law for child trespassers where the occupier was aware of the danger and aware that trespassers, including children would encounter the danger. British Railway Board v Herrington 1972 AC 877 overruling Addie v. Dumbreck 1929 AC 358.Addie v Dumbreck1929 AC 358House of Lords the defendant owned opinion Park colliery which was situated in a field adjacent to a road. There was a fence around the perimeter of the field although there were large gaps in the fence. The field was grassly used as a short cut to a railway station and children would use it as a playground. The defendant would often warn people off the land but the attempts were not effective and no real attempt was made to ensure that people did not come onto the land. A child came on to the land and was killed when he climbed onto a piece of haulage apparatus.Held No duty of care was owed to trespassers to ensure that they were safe when coming onto the land. The scarcely duty was not to inflict harm willfully. Viscount Dunedin In the present case, had the child been a licensee, I would have held the defenders liable secus if the whiner had been an adult. But, if the person is a trespasser, then the only duty the proprietor has towards him is not bitchyly to injure him he may not shoot him he may not set a spring grinder, for that is just to arrange to shoot him without in the flesh(predicate)ly fervency the stroking.Other illustrations of what he may not do might be found, but they all come under the same headinjury either directly venomous or an acting so heedless as to be tantamount to malicious acting. Occupier is given the same meaning as under the 1957 Act (S. 1 (2) OLA 1984). Since the Occupiers Liability Act 1984 applies to trespassers, a lower level of protection is offered. Hence the fact thatdeath and personal injury are theonly protected forms of damage and occupiers have no duty in relation to the property of trespassers. (S. 1 (8) OLA 1984). as well as the duty only arises when certain risk factors are present. . 1. 2. 1 The circumstances giving rise to a duty of care S. 1 (3)Occupiers Liability Act 1984 an occupier owes a duty to some other (not being his visitor) if (a) He is aware of a the danger or has reasonable thousand to suppose that it exists (b) He knows or has reasonable grounds to believe the other is in the locality of the danger or may come into the region of the danger (c) The risk is one in which in all thecircumstances of the case, he may reasonably be expected to offer the other some protection If all leash of these are present the occupier owes a duty of care to the non-lawful visitor.The criteria in s. 1 (3) must be set(p) having regard to the circumstances prevailing at the time the maintain dampen of duty resulted in injury to the claimant Donoghue v Folkestone Properties 2003 EWCA Civ 231 courtroom of Appeal Mr. Donoghue, the claimant, spend Boxing twenty-four hours evening in a public house called seedy Murphys. It was his intention, with some of his friends, to go for a midnight swim in the sea. Unfortunately in his haste to get into t he water he dived from a ship canal in Folkestone harbor owned by the defendant and strike his head on an underwater obstruction, intermission his neck.At his trial evidence was adduced to the affect that the ways had often been used by others during the summer months to dive from. hostage guards employed by the defendant had stop people from nosedive although there were no warning signs put out. The obstruction that had injured the claimant was a permanent feature of a grid-pile which was submerged under the water. In high flow this would not have posed a risk but when the tide went out it was a danger. The claimants action was based on the Occupiers Liability Act 1984. Mr. Donoghue was 31, physically fit, a professional aqualung underwater diver who had deft in the gallant Navy.It was part of his staple knowledge as a diver that he should check water levels and obstructions before diving. The trial approximate found for the claimant but reduced the damage by 75% to re flect the utmost to which he had failed to take care of his own safety under the legal philosophy repossess (Contributory Negligence) Act 1945. The defendant appealed contending that in assessing whether a duty of care arises under s. 1(3) each of the criteria must be assessed by informant to the individual characteristics and attributes of the particular claimant and on the particular occasion when the incident in fact occurred i. . when assessing whether the defendant should be aware of whether a person may come into the vicinity of the danger, it should be assessed on the likelihood of someone diving into the water in the ticker of the night in mid-winter rather than looking at the incidences of diving during the summer months. Held Appeal allowed. The test of whether a duty of care exists under s. 1(3) Occupiers Liability Act 1984 must be resolved having regard to the circumstances prevailing at the time of the assert outrage resulted in injury to the claimant. At the t ime Mr.Donoghue preserve his injury, Folkestone Properties had no reason to believe that he or anyone else would be swimming from the slipway. Consequently, the criteria set out in s. 1 (3) (b) was not satisfied and no duty of care arose. 4. 1. 2. 2 prototype of care S. 1 (4) OLA 1984 the duty is to take such care as is reasonable in all the circumstances of the case to see that the other does not suffer injury on the premises by reason of the danger concerned. Revill v Newbery 1996 2 WLR 239 cost of Appeal Mr. Newbery was a 76 year old man. He owned an assignation which had a shed in which he kept various valuable items.The shed was work to frequent breaking and vandalism. Mr. Newbery had taken to sleeping in his shed armed with a 12 bore cam stroke gun. Mr. Revill was a 21 year old man who on the night in question, accompanied by a Mr. Grainger, and went to the shed at 2. 00 am in order to break in. Mr. Newbery awoke, picked up the shot gun and fired it through a small hole in the door to the shed. The shot hit Mr. Revill in the arm. It passed right through the arm and entered his chest. Both parties were prosecuted for the sinful offences move. Mr. Revill pleaded blameable and was sentenced. Mr. Newbery was acquitted of wounding. Mr.Revill brought a civil action against Mr. Newbery for the injuries he suffered. Mr. Newbery raised the defense of ex turpi courting, accident, self-defense and tributary negligence. Held The Claimants action was successful but his damages were reduced by 2/3 under the Law Reform (Contributory Negligence) Act 1945 to reflect his responsibility for his own injuries. On the application of ex turpi causa Neill LJ For the purposes of the present judgment I do not find it necessary to consider provided the joint criminal enterprise cases or the application of the doctrine of ex turpi causa in other areas of the law of tort.It is sufficient for me to confine my attention to the liability of someone in the position of Mr. Newbery towards an intruding despoiler. It seems to me to be clear that, by enacting section 1 of the 1984 Act, Parliament has decided that an occupier cannot treat a burglar as an criminalise and has defined the scope of the duty owed to him. As I have already indicated, a person other than an occupier owes a similar duty to an intruder such as Mr. Revill. In paragraph 32 of their 1976 Report the Law Commission jilted the suggestion that there should be no duty at all owed to a trespasser who was engaged in a serious criminal enterprise. Ratcliff v McConnell and harper Adams College 1997 EWCA Civ 2679 Court of Appeal The claimant was a scholar at harpist Adams College. One night he had been out drinking with friends on campus and they decided they would go for a swim in the college pond which was 100 yards from the disciple bar. They climbed over a locked gate into the open air swimming mob. The pocket billiards had a notice at the entrance which utter the consortium wou ld be locked and its use banned between the hours of 10pm -6. 30am.There was a notice at the shallow end in red on a White stress stating Shallow end and a notice at the deep end stating tardily end, shallow dive. However, the boys did not see the signs because there was no light. The three boys undressed. The claimant put his toe in the water to test the temperature and then the three of them lined up along the side of the pool and dived in. Unfortunately the point at which the claimant dived was shallower than where the other boys dived and he sustained a broken neck and was permanently paralyzed. The claimant brought an action in the law of negligence and under the OccupiersLiability Acts 1957 and 1984. The trial enunciate held that the claimant was a trespasser since he was not permitted to go into the pool and that the College owed a duty of care under the 1984 Act since the pool had often been used by students in the prohibited hours so the College should have been aware th at the claimant was within a class of persons who may come into the danger. The scandalise was in not taking more preventative action to prevent use of the pool. The claimants damages were, however, reduced by 60% under the Law Reform (Contributory Negligence) Act 1945.The defendants appealed contending the evidence relied on by the claimant in terms of repeated trespass all took place before 1990 before they started locking the gates. Held The appeal was allowed. The claimant was not entitled to compensation. The defendant had taken greater steps to reduce trespass by students since 1990. The only incidence of trespass to the pool in the four years prior to the claimants injury, tie in to students from a visiting college and therefore there was no reason for the college to suspect the students had come into the danger so no duty of care arose under s. (3) (b) Occupiers Liability Act 1984. as well the trial value had incorrectly identify the danger. The pool itself was not dange rous it was the activity of diving into it which was unsafe. This was an obvious danger to which there was no duty to warn. By touch the pool with a 7 foot high fence, a locked gate and a prohibition on use of the pool in the stated hours the College had offered a reasonable level of protection. The duty may be discharged by giving a warning or discouraging others from taking the risk S. (5) Occupiers Liability Act 1984 posting there is no obligation in relation to the warning to enable the visitor to be reasonably safe line of business the provision under the 1957 Act. Tomlinson v. Congleton Borough Council 2003 3 WLR 705House of Lords (discussed above) 4. 1. 2. 3Defenses Volenti non fit Injuria s. 1 (6) OLA 1984 no duty of care is owed in respect of risks willingly accepted by the visitor. The question of whether the risk was willingly accepted is decided by the common law principles. Contributory negligence Damages may be reduced under the Law Reform Contributory Negligen ce) Act 1945 where the visitor fails to take reasonable care for their own safety. Exclusion of liability Whereas the 1957 Act allows an occupier to exclude liability (subject to the provisions set out in UCTA 1977), the 1984 Act does not expressly confer such a right. This may be an oversight by the legislature and it may be viable to exclude liability since it is not expressly forbidden or it may be that the legislaturewas of the opinionthat it should not be possible to exclude liability for the base level of protection afforded to trespassers. . 2 Liability for Manufacturers The narrow rule in Donoghue v Stevenson 1932 AC 562 recognizes that manufacturers owed a duty of care to ultimate consumers of the construct products. Over the years this duty was extended and refined and took on in practice some of the characteristics of strict liability. Parliament has now imposed such a strict liability on manufacturers under the Consumer vindication Act 1997.Although this act does no t expressly have effect in place of the rules of common law( in the way that the Occupiers Liability Act do, in practice it affords more satisfactory remedies , and the narrow rule in Donoghue v Stevenson need no durable be analyze in detail. 4. 3 Liability for employers An employee injured at work has three possible actions against the employer. i) An action in negligence for breach of the employers duty of care. This is the concern this chapter ii) An action for breach of statutory duties imposed by parliament on the employer. The principles of the tort of breach of statutory duty will be explained later.The content of the various regulations prescribing safety equipments, clothing, procedures and so forth fall outside the course of study and are part of a medical specialist course in employment law. iii) The employer may be secondaryly liable for the torts committed by another employee. The principle of and the justifications for vicarious liability will be explained in detai l later. For the present if is enough to personal credit line that an employer (even if not in person at fault) is in law answerable for the torts committed by employees in the course of their employment. The inter- relation between these actions is of some interest.Before 1948 an action based on vicarious liability was not on hand(predicate) because of the doctrine of common employment. If A, an employee of X Ltd, tortuously injured B, another employee of X ltd, then X Ltd would be liable to C, but not to B, because A and B were in the common employment of X ltd. This doctrine provided protection for the employer against possible dear(predicate) tort claims. To head start this however the courts (a) special the common law negligence action in a way that upgrade the employee and (b) permitted civil action for damages to be brought for breaches of safety regulations.The doctrine of common employment was abolished by statutes in 1948(Law Reform (Personal Injuries) Act 1948. So e mployees now have a vicarious liability claim and also the benefit of the limited common law action and actions for breach of statutory duty. The record of the Common Law Action The employers common law duty of care differs from the ordinary duty of care. It is said to be non-delegable. This is most all the way explained by Lord Hailsham of St Maryleborne in McDermid v Nash Dredging1987 AC 906 as follows this special sensory faculty does not take in the proposition that the duty cannot be delegated in the sense that it is incapable(p) of being the subject of delegation, but only that the employer cannot escape liability if the duty has been delegated and then not properly performed. The facts of the case were that M was employed as a deckhand, by the defendants, but was sent by them to work on a ship operated by a several(predicate) company (in fact the parent company of the defendants). He was seriously injured when the captain of the ship (not an employee of the defendants) heedlessly operated the safety systems.The defendants were liable because their duty had been delegated to the employees of the parent company and not properly performed. enlarge of this area would be discussed when looking at vicarious liability. But in drumhead it is worth noting that employers owe a duty of care to their employees, but this duty is unalike in nature from the normal duty of care, being described as non-delegable. Court are now developing principles under which employees can also recover for the set up of work related stress. ==================================END========================================