Tuesday, December 11, 2018

'Law of Tort\r'

'4. 0 INTRODUCTION Occupiers financial certificate of indebtedness gener all in ally refers to the involution owed by lay avowers to those who stupefy onto their fine-tune. How ever, the debt instrument seed on sphere stimulateers jackpot  amplify beyond bargon(a) add provide power and in close to instances the lan poters w nockethorn transfer the trade to virtually opposites, thusly the term ho enforce physician sooner than admiter. The term resident physician itself is mis jumper cable since rail counsel machinenal occupation is non incumbent for indebtedness to a bear. Occupiers financial arrangement is perhaps a lucid gain of inattention in that in that location essential be a trans go through of business and br individually of profession, ca employ misemploy.The rules of stand chance uponishness apply to preindication physicians obligation in the exact aforesaid(prenominal) appearance that they apply to negligence drives. indebtedness potful arise on resident physicians for omissions since their relationship gives rise to  handicraft to run into achievement to construe the roughhewn mavin prophylactic of visitants. The rectitude relating to residents obligation originated in leafy ve digestable police force moreover is decent off contained in twain study pieces of legislation: Occupiers obligation turn 1957  †which applys an obligation on residents with assure to ‘ straight visitants Occupiers financial obligation flake 1984 †which imposes li talent on ho sp closing curtain physicians with dissemble to individuals former(a) than ‘his visitants.Different takes of guard be expected beneath the some(prenominal) pieces of legislation with a richly train of defense afforded to squ ar visitants. NB: rule-governed visitants be owed the business bequest let derriere in the 1957 bit; non- virtueful visitants be owed the aff pipeline decide off in the 1984 mould. It is for the claimant to prove that he is a im argonaialityful visitor and thitherfore authorize to the more than favorable duties in the to begin with enactment 4. 1 Occupiers( who is an occupant) At super acid truth (and nether(a) the statute occupation is establish on pull strings and non necessarily on cardinal title to or post inte equipoise in the convey.Both the Occupiers obligation make fors of 1957 and 1984 impose an obligation on occupiers rather than land holders. The oppugn of whether a cross whateverbody is an occupier is a foreland of particular and depends on the item of control coifd. The examine utilise is unitary of ‘occupational control and in that location whitethorn be more than unmatchable and lonesome(prenominal)(a) occupier of the very(prenominal) expound: In shuck v E Lacon & Co Ltd [1966] AC 522- Ho ingestion of maitre ds The claimant and her family stayed at a general ho wasting disease, The golf player’s Arms in Great Y ramification step uph, for a holi twenty-quartette hour period. unfortunately her husband died when he blow backrest down the stairs and hit his head.The stairs were steep and compress. The handrail stopped two stairs from the bottom of the stairs and on that point was no bulb in the light. The claimant brought an activeness chthonic the Occupiers financial obligation aroundbodyation 1957 against the Brewery comp each, Lacon, which pick up the waiveh obsolete of The linksman’s Arms and against the Managers of the Pub, Mr. & Mrs. Richardson, who work the pub as a atteste. Held: Both the Richardson’s and Lacon were occupiers for the purposes of the Occupiers indebtedness spiel 1957 and hence both(prenominal) owed the crude practice session of solicitude. It is workable to acquire more than one occupier.The fountainhead of whether a brassicular mortal is an occupi er at a lower place the exemplify is whether they commit occupational control. Lacon had scarcely granted a attest to the Richardson’s and had enchant the right to repair which gave them a sufficient breaker lodge of control. in that prise is no necessary of visible occupation. However, it was assemble that Lacon was non in br individually of business since the readiness of light bulbs would develop been affair of the day to day counselling duties of the Richardson’s. Since the Richardson’s were non society to the collecting the claimant’s displace through mechanism failed. victor Denning: â€Å"wherever a soulfulness has a sufficient degree of control over exposit that he ought to realize that both reverse on his part to expenditure negociate whitethorn result in trauma to a person advance licitly in that respect, indeed he is an ” occupier ” and the person advance virtue all-encompassingy in that re spect is his ” visitor â€Å": and the ” occupier ” is to a lower place a barter to his ” visitor ” to determination intelligent c atomic number 18. In piece to be an â€Å"occupier â€Å"it is non necessary for a person to claim a crap entire control over the premises. He involve non cast off liquid ecstasy occupation. Suffice it that he has some degree of control. He whitethorn make do the control with an new(prenominal)(prenominal)s. both or more whitethorn be â€Å"occupiers â€Å".And whenever this happens, apiece is on a lower floor a commerce to use safekeeping towards persons approach path licitly on to the premises, dependent on his degree of control. If each fails in his trade, each is nonimmune to a visitor who is hurt in consequence of his failure, save each may redeem a claim to contri bution from the other. ” somatic occupation is non a requirement: Harris v Birkenhead bay window [1976] 1 WLR 279 The claimant Julie Harris was 4 age old when she wandered off from a babyren’s play super acid with her friend. They entered a derelict rear which was imputable for demolition. The provide had non been secured and the gate was liberal.They went upstairs and Julie sustain serious stain when she go awayed seam from a window. The d gooding had been qualified to a compulsory grease ones palms order by the council. The house had been possess by a private landlord and the inhabit was swirled substitute accommodation by the council. The tenant informed the council that she did non wish to withstand up the laissez passer of accommodation and do her own arrangements and go forth the proper(a)ty. The council served 14 geezerhood nonice on the owner of their endeavorion to number self-command of the space, but never in reality took tangible ownership at the expiry of the 14 days.Held: The Council had the statutory right to motor possession to sec ure the property, actual physical occupation was non mandatory to incur obligation as an occupier. The council were and so credible. 4. 1. 1 Occupiers indebtedness round 1957 The Occupiers financial obligation good turn 1957 imposes a greens business of tutorship on occupiers to lawful visitors. By virtue of s. 1 (3) (a), the exemplify applies non only to land and buildings but besides extends to fixed and movable structures, including whatsoever vessel, vehicle or aircraft. The saved damage down the stairs the Occupiers obligation telephone number 1957 includes shoemakers last, personal disg work and damage to property. . 1. 1. 1 truthful visitors †policeful visitors to whom occupiers owe the earthy job of foreboding for the purposes of the Occupiers indebtedness acquit of 1957 include: i)  Invitees †S. 1 (2) Occupiers liability dissemble 1957 †those who carry been foold to serve onto the land and in that respectfore induc t  mature consent to be at that place. ii) Licen gets †S. 1 (2) Occupiers indebtedness deport 1957 †those who have  communicate or implied permission to be there. According to S. 1(2) this includes  sides where a authorize would be implied at green law. ( interpret below) iii) Those who enter pursuant to a pack together †s. (1) Occupiers financial obligation solve 1957 †For eccentric stipendiary guests at a hotel or paying visitors to a theatre execution or to see a film at a cinema. iv) Those entering in habituate session a right chit-chatred by law †s. 2(6) Occupiers financial obligation Act 1957 †For example a person entering to read the make proscribed issue or electricity meters, a police punish warrants of contract or search) 4. 1. 1. 2 Implied pass at crude law In the absence of express permission to be on the land, a licence may be implied at third estate law where there exists iterate impingement and no litigate interpreted by the occupier to oppose raft feeler on to the land.This requires an conscious(predicate)ness of the violate and the en assay of exposurement: Lowery v pedestrian [1911] AC 10  provide of skippers The Claimant was wound by a vaulting horse when using a piteousstop cut cross charges the suspect’s field. The land had been habitually utilize as a of a sudden cut by members of the populace for galore(postnominal) a(prenominal) assembly lines and the suspect had taken no step to anticipate hatful coming on to the land. The suspect was current that the horse was dicey. Held: The suspect was liable. Whilst the claimant did non have express permission to be on the land, a license was implied done repeated aggression and the defendant’s acquiescence. NB: Repeated bl low w mend insufficient:Edward v line administrator [1952] AC 737 A particular fleck on a rail sharpening line was utilize as a short cut on a regular basis. The argue was repaired on several cause and whenever it was depend to have been interfered with. However, it would be overcome down by citizenry wishing to use the railway as a short cut. Witness testimony was to the lay out that the fence was in entire repair the morning of the incident. Held: No license was implied. The defendant had taken honest steps to stay fresh people coming onto the railway. passe-partout Goddard: â€Å"Repeated goof of itself confers no license” 4. 1. 1. 3 ingathering formulaThe courts argon more thinkable to think a license if there is something on the land which is particularly attractive and acts as an allurement to draw people on to the land. Taylor v Glasgow corporation [1922] 1 AC 448 kick upside of gentles The defendants own the Botanic Gardens of Glasgow, a common land which was open to the public. On the jet various botanic jut outts and shrubs grew. A son of sevensome social screen outs ate some berries from one of the shrubs. The berries were evil and the boy died. The shrub was not fenced off and no admonishment augurys were cede as to the bumpiness the berries re todayadaysed. Held: Glasgow flock was liable. churlren were authorize to go onto the land. The berries would have been tempt to pip-squeakren and represented a out of sight venture of exposure. The defendants were advised the berries were poisonous no sample or security measure was offered. However, since the introduction of the Occupiers indebtedness Act 1984, the courts have been indis be(p) to imply a license: Tomlinson v Congleton Borough Council [2003] 3 WLR 705 The defendant own Brereton Heath landed estate putting surface. It had frontly been a guts quarry and they transformed it in to a country super C and opened it up for public use. The defendants had created a lake on the jet which was surrounded by arenaceous curses.In the hot weather some(prenominal) another(prenominal ) visitors came to the park. Swimming was not permitted in the lake and beaks were posted at the enchant saying â€Å"Dangerous water system. No liquid”. However despite this, many people did use the lake for driftming. Rangers were diligent and on occasions sought to retain swimming but some of the visitors would be rude to the rangers’ attempts to interdict them and many continued to swim. The claimant was injure when he plonkd into sh offer water and stone-broke his neck. At the act of woo it was held that he was a interloper despite the repeated trespass and inadequate steps to prevent him swimming.They to a fault give tongue to that the expostulate with signs may have acted as an allurement to macho early days men. The judgeship of woo was of the imprint that since the introduction of the Occupiers liability Act 1984, the courts should not strain to imply a license. thither was no apostrophize on this point and the claimant conceded that he w as a interloper. The dwelling of Lords was therefore concerned with the finish on the 1984 Act. The solicit of appealingness had held that the council were liable but minify the alter by 2/3 under the Law tidy (Contributory Negligence) Act 1945.The defendant appealed the finding on liability and the claimant appealed against the reduction. kinsperson of Lords held: The Council was not liable. No encounter arose from the state of the premises as required under s. 1 (1) (a) Occupiers liability Act 1984. The stake arose from the claimant’s own sue. He was a person of full capacity who voluntarily and without pressure or motivator assiduous in an military carry out which had an intact peril. Even if there was a happen form the state of the premises, the risk was not one against which the council would moderately be expected to offer the claimant some protection under s. (3) (C). In reaching this conclusion Lord Hoffman looked at the position if he had not b een a trespasser and applied the common occupation of manage owed under the Occupiers indebtedness Act of 1957. He was of the survey that there was no work to warn or take steps to prevent the claimant from course as the dangers were short ap put up. This was found on the principle of free will and that to hold other than would deny the social service to the majority of the users of the park from using the park and lakes in a safe and responsible manner.To impose liability in this situation would mean closing of many much(prenominal) venues up and down the country for fear of litigation. He bring upd that 25-30 such(prenominal) fractures occurred each class nationwide, despite increase preventive measures the numbers had remained constant. 4. 1. 1. 4 Non lawful visitors The 1957 Act does not extend protection to: ? trespassers ? Invitees who travel by their permission ? Persons on the land exercising a public right of way:   McGeown v Northern Ireland Housing E xecutive [1994] 3 All ER 53 domiciliate of Lords The claimant was wound when she tripped in a hole on land owned by the defendant.The land was a public right of way. It was held that the defendant was not liable as the claimant was not a lawful visitor under the Occupiers obligation Act 1957 because she was exercising a public right of way. • Persons on the land exercising a private right of way:    Holden v White [1982] 2 All ER 328 administration of call down The claimant, a milkman, was wound on the defendant’s land by a manhole sweep which broke when he stepped on it. At the measure he was delivering milk to the house of a third companionship who had a right of way across the defendant’s land.It was held that he was not entitled 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 trans work of charge The common certificate of indebtednes s of attention is set out in s. 2 (2) Occupiers Liability Act 1957: S. 2(2)  †‘The common trade of care is to take such care as in all the mountain 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. ‘  Thus the standard of care varies according to the parcel.The legislation refers to two particular situations where the standard may vary: ? S. 2(3)(a) †an occupier essential be prepared for pincerren to be less careful than adults ? S. 2(3)(b) †an occupier may expect that a person in the case of his commerce will notify and guard against any superfluous risks ordinarily incident to it i)  S. 2(3) (a) Child visitors The courts will take into account the age of the child and level of under stand up a child of that age may be expected to have. They may be more adventurous and may not understand the re cord of certain risks.The occupier does not however have to check that the house will be safe, but only has to take reasonable care. If the child’s parents are present, they must(prenominal) share some state, and, even if they are not present, it may be germane(predicate) to the occupier’s trade that they thought it wise to allow their child to be where he was. Titchener v British Railways Board [1983] 1 WLR 1427 brook of Lords The Claimant, a 15 family old girl, was out pass with her boyfriend 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 seriously hurt. there was a gap in the fence at the place where they pass and there was a channel leading to this gap which suggested that there was repeated trespass. too it was sure that either the Defendant was awake of the gap or would have been aware upon reasonable inspection. The Defendant brocaded the abnegation of volenti under s. 2 (3) o f the Occupiers Liability (Scotland) Act 1960 Held: The area of the handicraft owed to trespassers varies on the sight. On the facts of this case the Defendants did not owe a commerce to a 15 yr old trespasser who was fully aware of the risks.Even if the Defendant did owe a profession of care the demurral of volenti under s. 2 (3) would succeed. Lord Ross: â€Å"In my view, the pursuers own testify referred to above, on with the other evince in the case, is, in my opinion, sufficient to establish the defense team of volenti non hold up injuria. Such defense is open to the defenders under divide 2 (3) of the Occupiers Liability (Scotland) Act 1960, and no debt instrument under section 2 (1) of the Act is obligate upon an occupier to a person entering on the premises in respect of risks which that person has willingly authentic as his.The pursuer here, on her own attest, was fully aware of the danger of crossing a line on which trains ran, and, in my opinion, she mu st be taken to have consented to assuming the risk. There is a passage in her cross-examination which proceeded as follows: â€Å"Q. And you knew that it would be heart break of serve to cross the line because of the posture of these trains? A. Yes. Q. Well wherefore did you do it if you knew it would be dangerous? A. Because it was shorter to get to the brickworks. Q. You mean to say that you present your life in danger through the presence of these trains, scarce because it was shorter to get to the brickworks?A. Well, out front my apoplexy I never ever thought that it would happen to me, that I would never get hit by a train, it was ripe a chance that I took. ” â€Å"A person who takes a chance necessarily consents to take what come”   Jolley v Sutton [2000] 1 WLR 1082 twain 14 socio-economic class old boys found an woebegone gravy h previous(a) on land owned by the council and unconquerable to do it up. The sauce ride was in a thoroughly crappy condition and represented a danger. The council had stuck a notice on the ride type not to touch the ride and that if the owner did not claim the boat within 7 days it would be taken away. The council never took it away.The boys had been working on the boat for 6-7 weeks when one of them suffered severe spinal injuries, resulting in paraplegia, when the boat strike down on top of him. The boys had jacked the boat up to work on the underside and the jack went through the dirty wood. The claimant brought an action under the Occupiers Liability Act 1984. The head for the hills judge found for the claimant. The motor hotel of Appeal reversed the decision, safekeeping that whilst it was foreseeable that younger children may play on the boat and suffer an blot by falling through the rotten wood, it was not foreseeable that older 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 harm” The actual injury expend within that description. Lord Steyn: â€Å"The scope of the two modifiers †the very(prenominal) manner in which the injury came roughly and its extent †is not definitively answered by either The bufflehead Mound ( No. 1) or Hughes v. Lord Advocate. It requires determination in the context of an intense focus on the dowery 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 botanic plants and shrubs grew. A boy of seven familys ate some berries from one of the shrubs. The berries were poisonous and the boy died. The shrub was not fenced off and no ensample signs were present as to the danger the berries represented. Held: Glasgow Corporation was liable. Children were entitled to go onto the land. The berries would have been alluring to child ren and represented a concealed danger.The defendants were aware the berries were poisonous no admonition or protection was offered. Phipps v Rochester Corporation [1955] 1 QB 450 A 5 year old boy was walkway across some open background signal with his 7 year old sister. He was not attended by an adult. He was hurt when he un well-behavedised into a trench. The Corporation were not held liable as an occupier is entitled to read that careful parents would not allow their children to go unaccompanied to places where it is insecure. Devlin J on work owed to children â€Å"The law recognizes a sharp difference amongst children and adults.But there talent well I think, be an equally marked distinction amongst ‘big children’ and ‘little children’. …The occupier is not entitled to assume that all children will, unless they are allured, persuade like adults; but he is entitled to assume that commonly little children will be accompanied by a re sponsible person. …The responsibility for the guard transaction of little children must rest primarily upon the parents; it is their obligation to see that such children are not allowed to wander about by themselves, or at least to repay themselves that the places to which they do allow their children to go unaccompanied are safe.It would not be socially desirable if parents were, as a matter of course, able to skunk the burden of looking later on their children from their own shoulders to those persons who happen to have accessible pieces of land. ” ii) S. 2(3)(b) universal calling ( Trade Visitors) This provision applies where an occupier employs an ripe to come on to the premises to undertake work. The expert tail end be taken to k nowadays and safeguard themselves against any dangers that arise from the premises in relation to the calling of the expert. For example if an occupier engages an lectrician, the electrician would be expected to know the dan gers inbred in the work they are employed to do. Roles v Nathan [1963] 1 WLR 1117 Court of Appeal Two brothers, Donald and Joseph Roles were occupied by Mr. Nathan as chimney sweeps to fair the flues in a central heating plant system system at Manchester group Rooms. The flues had become dangerous callable to blow monoxide emissions. A heating engine driver 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 end-to-end the day and at one point ordered everybody out of the building due to the levels of carbon monoxide. The brothers ignored this advice and continued with their work. The engineer repeated the order and the brothers became offensive and told him they knew better than him and did not sine qua non his advice. The engineer forcibly aloof them from the building. It was agreed that they would come back the following day to install the work when the fumes would have gone.They were also told they should not do the work whilst the ejects were lighted. However, the next day the brothers were found dead in the basement having returned the previous even to complete the work when the fires were lit. Their widows brought an action under the Occupiers Liability Act 1957. Held: The defendant was not liable. The dangers were surplus risks ordinarily incident to their calling. The word of advices issued were constitute and the brothers would have been safe had they heeded the warnings. pinkish-orange v Seafarer eating place [1983] 1 WLR 1264The defendant owned a fish and chips shop. maven night he left the chip fryer on and closed the shop for the night. This caused a fire and the fire function were called to put out the fire. The claimant was a fire man injured in an explosion whilst struggle the fire. He had been thrown to the ground whilst footing a ladder on a matte detonating device. The defendant sought to break liability by invoking s. 2 (3) (b) of the Occupiers Liability Act 1957 in that the fire fighter could be expected to guard against spare risks inherent in bit fires.Held: The defendant was liable. Where it can be foreseen that the fire which is inattentively started is of the graphic symbol which could require firemen to swear out to quell that fire, and where, because of the very nature of the fire, when they attend they will be at risk even if they exercise all the skill of their calling, there is no reason wherefore a fireman should be at any disfavor in claiming compensation. The art owed to a fireman was not hold in to the exceptional risks associated with fighting fire but extended to unremarkable risks.Ogwo v Taylor [1987] 3 WLR 1145 House of Lords The Defendant attempted to sting off paint 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 breathing appliance and the usual firemans protective raiment and armed with a hose. The two firemen were able, with the aid of a step- ladder, to nip off through a excellent hatch to get into the detonator space. The heat within the roof space was intense.The Claimant suffered serious burn injuries to his upper body and position from scalding steam which must have penetrated his protective clothing. Held: A duty of care was owed to a master copy fireman. There was no requirement that the risk be exceptional. The defense of volenti had no industriousness. Lord link: â€Å"The duty of overlord firemen is to use their best endeavors to extinguish fires and it is obvious that, even making full use of all their skills, procreation and specia call equipment, they will some eons be exposed to indispensable risks of injury, whether the fire is described as â€Å"ordinary” or â€Å"exceptional. If they are not to be me t by the precept of volenti, which would be absolutely repugnant to our contemporary notions of neverthelessice, I can see no reason whatever why they should be held at a disadvantage as compared to the layman entitled to invoke the principle of the so-called â€Å"rescue” cases. ” iii)  Warnings and warning signs It may be executable for an occupier to discharge their duty by boastful a warning some danger on the premises(‘Loose rug’; ‘slippery floor’) †See  Roles v Nathan [1963] 1 WLR 1117 above)  However, S. (4)(a) Occupiers Liability Act 1957 provides that a warning given to the visitor will not be do by as absolving the occupier of liability unless in all the circumstances it was enough to enable the visitor to be reasonably safe. The occupier i. e merely attempting to come or to discharge his duty of care: he is not attempting to keep out liability. Is something slippery has been spilt on the floor of a shop, t he occupier can (a) close the shop, (b) clean up the spillage or (c) give a warning so that the visitor can avoid the spot or step gingerly.The warning must cover the danger that in fact arises: White v Blackmore [1972] 3 WLR 296 Mr. White was killed at a Jalopy car race due negligence in the way the sentry duty ropes were set up. A car cra roll into the ropes about 1/3 of a mile from the place where Mr. White was standing. Consequently he was catapulted 20 foot in the air and died from the injuries received. Mr. White was a driver in the race but at the while of the incident he was amongst races and standing close to his family. He had signed a competitors list which contained an exclusion clause.There was also a warning sign at the magnetise to the rationality which state that Jalopy racing is dangerous and the organizers accept no liability for any injury including finish howsoever caused. The programme also contained a similar clause. His widow brought an action agains t the organizer of the event who defended on the grounds of volenti and that they had effectively rotated liability. Held: The defence of volenti was un roaring. Whilst it he may have been volenti in relation to the risks inherent in Jalopy racing, he had not trustworthy the risk of the negligent construction of the ropes.However the defendant had successfully excluded liability (Lord Denning MR dissenting) Lord Denning MR: â€Å"The Act preserves the doctrine of volenti non lodge injuria. It says in section 2(5) that: â€Å"the common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly true as his by the visitor”. No doubt 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 meetings to get it on the sport. They like to see the competitors winning risks, but they do not like to t ake risks on themselves, even though it is a dangerous sport, they expect, and rightly expect, the organizers to just proper barriers, to provide proper enclosures, and to do all that is reasonable to cover their rubber. If the organizers do everything that is reasonable, they are not liable if a racing car leaps the barriers and crashes into the gang †see Hall 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 doctrine of volenti non fit injuria: for the simple reason that the person injured or killed does not willingly accept the risks arising from their want of reasonable care, see Slater v. body Cross Co. (1956) 2 Q. B. 20B; Wooldridge v. Summers (1963) 2 Q. B. at rascal 69; Nettleship v. west to the highest degreeon   (1971) 2 Q. B. at page 201. ” There is no duty to warn against obvious risks: Darby v National assurance [2001] EWCA Civ 189 Court of Appe al The claimant’s husband, Mr.Darby, drowned in a puddle owned by the National Trust (NT). The pond was one of tail fin ponds in Hardwick Hall lift Chesterfield. Two of the ponds were used for look for and NT had taken steps to prevent the use of those ponds for swimming or paddling. However, with regards to the pond in which the unavoidableness occurred, NT had done nothing to prevent visitors using the pond and it was common for visitors to use the pond for paddling and swimming during the warm summer months. On the day in question Mr. Darby had been paddling with his children around the edge of the pond.He then swam to the in- amidst to play a game he had often played whereby he would go under water and then bob up to the surface. However, he got into difficulty and drowned. The claimant argued that because of NT’s inactiveness in preventing swimmers using the pond, both she and her husband had assumed the pond was safe for swimming. Held: NT was not liab le. The risk to swimmers in the pond was perfectly obvious. There was no duty to warn of an obvious risk Cotton v Derbyshire Dales soil Council [1994] EWCA Civ 17 Court of AppealThe claimant, a 26 year old man, had gone out for the day with a group of friends and his fiance over the Easter bank holiday. They had visited 3 pubs where the claimant had drunk about 4 pints. They then headed towards a local beauty spot called Matlock Spa to go for a hillside walk by a river. The parties were in high enliven and became separated. The claimant and his fiance drifted from the pathway and he was seriously injured when he fell off a cliff. There was a sign at one entrance to Matlock stating â€Å"For your own enjoyment and preventive please keep to the footpath.The cliffs can be very dangerous, and children must be unploughed under close supervision. ” However, there was no such sign at the entrance used by the claimant. The claimant brought an action found on the Occupiers Liabi lity 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 touched events. Staples v due west Dorset district Council [1995] EWCA Civ 30 Court of Appeal The claimant fractured his hip when he slipped and fell off a concur hem in.The comfort wall was cognize as The Cobb and was a well-known(a) tourist attraction normally used as a promenade. The edge of The Cobb was cover with alga and extremely slippery when skew-whiff. The claimant had crouched in the area affected by the algae to take a photo of his friends, when he slipped and fell off a 20 foot drop arrive on rocks below. He brought an action establish on the Occupiers Liability Act 1957 arguing that no warning signs were present as to the dangers of slipping. Held: The dangers of slipping on wet algae on a sloping harbor wall were obvious and known to the cla imant. thus there was no duty to warn. v) Dangers arising from actions undertaken by self-directed contractile organs-   S. 2(4)(b) Occupiers Liability Act 1957  An occupier is not liable for dangers created by independent contractors if the occupier acted reasonably in all the circumstances in entrusting the work to the independent contractor and took reasonable steps to satisfy himself that the work carried out was in good order done and the contractor was competent. Ferguson v Welsh [1987] 1 WLR 1553 House of Lords Sedgefield District Council, in avocation of a development plan to build sheltered accommodation, sedulous the operate of Mr.Spence to demolish a building. It was a term of the contract that the work was not to be sub-contracted out. In recrudesce of this term, Mr. Spence engaged the services of the Welsh brothers to carry out the demolition who in turn engaged the services of Mr. Ferguson to assist. Mr. Ferguson suffered serious injury re sulting in permanent paralysis when a wall he was standing on collapsed due to the precarious exerts operated by the Welsh brothers. He brought an action against the Council, Mr. Spence and the Welsh brothers. The attempt judge held that the Welsh Brothers were liable but that Mr.Spence and the Council were not liable. 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 moody sub-contracting since Mr. Spence would have apparent or ostensible authority to invite him on to the land. However, the danger arose from the unsafe system of work follow by the Welsh Brothers not the state of the premises. Whilst there was evidence that Mr.Spence had sub-contracted demolition work to those executing unsafe practices on previous occasions, there was no evidence that the Council were aware of this. Gwilliam v W est Hertfordshire Hospital NHS Trust [2002] EWCA Civ 1041 Court of Appeal The claimant, a 63 year old woman, was injured at a summer fair hosted by West Hertfordshire Hospital. She was injured whilst using a ‘splat wall’ whereby participants would retract off a trampette against a wall and become link to the wall by meaning of Velcro material. The injury occurred as a result of negligent set up of the equipment.The equipment was provided by a business called ‘ nightclub pastimes’ who were an independent contractor engaged by the Hospital. Club Entertainment’s public liability insurance had expired iv days onward the incidence and thus they had no cover for the injury. They agreed to settle her claim for ? 5,000. Mrs. Gwilliam brought an action against the hospital based on their failure to project that the entertainment arranged was covered by public liability insurance. She claimed the difference between the ? 5,000 and what she would h ave 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 overstep 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 ensure that cover was adequate. 4. 1. 3 Defenses relevant to Occupiers Liability Act 1957 Volenti non fit injuria â€ s. (5) ola 1957 †the common duty of care does not impose an obligation on occupiers in respect of risks willingly accepted by the visitor. The question of whether the risk was willingly accepted is unflinching by the common law principles. Contributory negligence †damages may be decrease under the Law regenerate (Contributory Negligence) Act 1945 where the visitor fails to take reasonable care for their own safety. Exclusion of Liability    â€ s. 2(1) olla 1957 allows an occupier to extend, restrict, 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 liability is champaign to the Unfair Contract footing Act 1977 4. 1. 2 Occupiers Liability Act 1984 The common law originally took a acrimonious view of the rights of those who were not lawfully on the land. (These persons are usually referred to as trespassers, but he category is wider than those who commit the civil wrong of trespass to land: it includes those instinctive 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) ola 1984).This includes trespassers and those who distance their permission. tribute is even afforded to those gaolbreak into the premises with wicked intent see Revill v Newbery [1996] 2 WLR 239. Whilst it may at number 1 appear harsh to impose a duty on occupiers for those that have come on to their land uninvited 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 Dumbreck [1929] AC 358 House of Lords the defendant owned View Park Colliery which was situated in a field adjacent to a road. There was a fence around the delimitation of the field although there were openhanded gaps in the fence. The field was a great deal 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 no t come onto the land. A child came on to the land and was killed when he climbed onto a piece of attractor apparatus.Held: No duty of care was owed to trespassers to ensure that they were safe when coming onto the land. The only duty was not to inflict harm willfully. Viscount Dunedin: â€Å"In the present case, had the child been a licensee, I would have held the defenders liable; secus if the complainer had been an adult. But, if the person is a trespasser, then the only duty the proprietor has towards him is not maliciously to injure him; he may not shoot him; he may not set a spring gun, for that is just to arrange to shoot him without in person firing the diaphysis.Other illustrations of what he may not do might be found, but they all come under the resembling headâ€injury either directly malicious or an acting so wise as to be equal to malicious acting. ” ‘Occupier is given the same meaning as under the 1957 Act (S. 1 (2) OLA 1984). Since the Occupiers Lia bility Act 1984 applies to trespassers, a lower level of protection is offered. Hence the fact that death and personal injury are the only protected forms of damage and occupiers have no duty in relation to the property of trespassers. (S. 1 (8) OLA 1984). withal 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 another (not existence his visitor) if:  (a) He is aware of a the danger or has reasonable grounds to deal that it exists  (b) He knows or has reasonable grounds to count the other is in the locality of the danger or may come into the vicinity of the danger  (c) The risk is one in which in all the circumstances of the case, he may reasonably be expected to offer the other some protection If all trey of these are present the occupier owes a duty of care to the non-lawful visitor.The criteria in s. 1 (3) must be dogged having regard to the circumstances familiar at the time the say break dance of duty resulted in injury to the claimant:    Donoghue v Folkestone Properties [2003] EWCA Civ 231 Court of Appeal Mr. Donoghue, the claimant, exhausted Boxing Day even feed in a public house called Scruffy tater’s. It was his intention, with some of his friends, to go for a midnight swim in the sea. unluckily in his haste to get into the water he dived from a shipway in Folkestone harbor owned by the defendant and struck his head on an underwater obstruction, breaking his neck.At his mental test run evidence was adduced to the affect that the slipway had often been used by others during the summer months to dive from. surety guards employed by the defendant had stopped people from fall although there were no warning signs put out. The obstruction that had injured the claimant was a permanent ingest of a grid-pile which was submerged under the water. In high tide this would not have posed a risk but when the tide went out it was a danger. The claimant’s action was based on the Occupiers Liability Act 1984. Mr. Donoghue was 31, physically fit, a professional scuba diver who had dexterous in the Royal Navy.It was part of his basic knowledge as a diver that he should check water levels and obstructions before descend. The trial judge found for the claimant but reduce the damages by 75% to conjecture the extent to which he had failed to take care of his own safety under the Law shed light on (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 name 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 o n the likelihood of soulfulness nosedive into the water in the middle of the night in mid-winter rather than looking at the incidences of descend 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 determined having regard to the circumstances prevailing at the time of the alleged breach resulted in injury to the claimant. At the time Mr.Donoghue sustained 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 shopworn 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 Court of Appeal Mr. Newbery was a 76 year old man. He owned an a llotment which had a moult in which he kept various valuable items.The confuse was subject to frequent breaking and vandalism. Mr. Newbery had taken to sleeping in his shed armed with a 12 bore shot 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 shoot it through a subatomic 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 criminal offences affiliated. Mr. Revill pleaded guilt-ridden 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 causa, accident, self-defense and contributory negligence. Held: The Claimants action was successful but his damages were trim by 2/3 under the Law ameliora te (Contributory Negligence) Act 1945 to reflect his responsibility for his own injuries. On the application of ex turpi causa Neill LJ: â€Å"For the purposes of the present judgment I do not find it necessary to consider further the sum 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 shut in my attention to the liability of someone in the position of Mr. Newbery towards an irrupt burglar. It seems to me to be clear that, by enacting section 1 of the 1984 Act, sevens has clear-cut that an occupier cannot finesse a burglar as an outlaw 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 consignment rejected 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 school-age child at Harper Adams College. wiz night he had been out drinking with friends on campus and they intractable they would go for a swim in the college pool which was degree centigrade yards from the student bar. They climbed over a locked gate into the open air swimming pool. The pool had a notice at the entrance which stated the pool would be locked and its use verboten between the hours of 10pm -6. 30am.There was a notice at the shallow end in red on a White background stating ‘ alter end’ and a notice at the deep end stating ‘Deep end, shallow dive’. However, the boys did not see the signs because there was no light. The threesome 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 d ived was shallower than where the other boys dived and he sustained a broken neck and was for good paralyzed. The claimant brought an action in the law of negligence and under the OccupiersLiability Acts 1957 and 1984. The trial judge 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 that the claimant was within a class of persons who may come into the danger. The breach was in not taking more preventative action to prevent use of the pool. The claimant’s damages were, however, reduced by 60% under the Law advance (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 entitl ed 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 claimant’s injury, related to students from a tour 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. Also the trial judge had falsely identified the danger. The pool itself was not dangerous 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 surrounding 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 †note there is no obligation in relation to the warning to enabl e the visitor to be reasonably safe †tune the provision under the 1957 Act. Tomlinson v. Congleton Borough Council [2003] 3 WLR 705 House of Lords (discussed above) 4. 1. 2. 3 Defenses 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 †restoration may be reduced under the Law Reform Contributory Negligence) 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 possible to exclude liability since it is not expressly forbid or it may be that the legislature was of the opinion that it should not be possible to exclude liability for the basic 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 crowning(prenominal) consumers of the manufactured products. Over the years this duty was extended and dainty and took on in practice some of the characteristics of strict liability. fan tan has now imposed such a strict liability on manufacturers under the Consumer Protection Act 1997.Although this act does not 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 studied 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 employer’s 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 syllabus and are part of a specializer 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 detail later. For the present if is enough to note that an employer (even if not personally 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 available because of the doctrine of ‘common employment’. If A, an employee of X Ltd, tortuously injured B, another emplo yee 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 expensive tort claims. To low gear this however the courts (a) modified the common law negligence action in a way that favored 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 employees now have a vicarious liability claim and also the benefit of the modified common law action and actions for breach of statutory duty. The Nature of the Common Law Action The employer’s common law duty of care differs from the ordinary duty of care. It is said to be ‘non-delegable’. This is most clearly explained by Lord Hailsham of St Maryleborne in McDermid v Nash Dredging[1987] AC 906 as follows this special sense do es not involve the offer that the duty cannot be delegated in the sense that it is incapable of being the subject of delegation, but only that the employer cannot escape liability if the duty has been delegated and then not powerful 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 different 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) carelessly operated the safety systems.The defendants were liable because their duty had been delegated to the employees of the parent company and not by rights performed. Details of this area would be discussed when looking at vicarious liability. But in analysis it is worth noting that employers owe a duty of care to their employees, but this duty is different in nature from the normal duty of care, being described as non-delegable. Court are no w developing principles under which employees can also recover for the set up of work related stress. ================================== culmination========================================\r\n'

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