For the purposes of this paper, it is affected that accountability for apathy rests alone on the Umbridge Village Fête Committee (UVFC) with absorption to the amercement suffered by Tony and Will as it is about accustomed that acknowledged albatross should lie with the blow organiser/hirer.
The allowance activity should atone the Borsetshire County Board (BCC) adjoin all activities on the agreed land, except to the admeasurement that the blow is due to any act or blank of the BCC.
In adjustment to accomplish in a affirmation for negligence, the appellant charge prove that they were owed a assignment of care, that the assignment was breached, and that the aperture resulted in the blow complained of. The ascendancy for assignment of affliction is the arch case of Donoghue v Stevenson (1932) and it is able-bodied accustomed law that blow organisers owe a assignment of affliction to the participants, assemblage and the accustomed accessible who appear their events.
It follows that the UVFC had a assignment to ensure that all accountable risks had been abundantly adjourned and that the adapted assurance measures had been put in abode with absorption to the planned competitions. Accustomed that a assignment has been established, it charge now be bent whether the UVFC has breached that duty.
According to Alderson B, in Blyth v Birmingham Waterworks (1856), to abstain breaching a assignment of care, the actor charge accommodated the accustomed of a “reasonable man”. This analysis is cold and recognises that the boilerplate actuality can not apprehend every risk. Case law has accustomed that anyone acting aural a specific breadth of accomplishment charge appearance the aforementioned accustomed of affliction as a reasonable actuality with that accurate skill.
Therefore, the catechism to ask is “what would a reasonable blow organiser, placed in the aforementioned position as the UVFC, accept done, and did the UVFC accommodated that standard?” If it can be credible that the UVFC did not use acceptable affliction with absorption to the competitions, accountability in apathy may arise.
On the facts, it was wholly absurd to acquiesce a adversary to use a garden burrow as a spile accustomed the attributes of the game. Any reasonable actuality would accept recognised that application such an apparatus in that address could aftereffect in austere injury. Therefore, the UVFC is in aperture of its duty.
It is readily credible that ‘but for’ the behindhand act of the blow organiser in acceptance the burrow to be acclimated in the competition, this abrasion would not accept occurred. Therefore, the UVFC will be accountable for the abrasion unless the blow is too remote. The analysis for absorption of blow as captivated in The Wagon Mound (1961) is that the blow charge accept been analytic foreseeable.
This is readily accustomed because all Tony charge prove is that some claimed abrasion was foreseeable. The absolute affairs charge not be foreseeable, as amercement can be recovered for an “unforeseeable anatomy of a accountable blazon of injury”, and for “unforeseeable after-effects of a accountable blazon of injury” Therefore, it is acceptable that the UVFC will be accountable for Tony’s injury.
The UVFC may altercate volenti non fit injuria. Case law has accustomed that assemblage accept the blow of abrasion back accessory assertive contest and appropriately atone the organisers. For archetype a actuality accessory an ice hockey blow accepts the blow they could be afflicted by a puck. Similarly, a beholder at a golf tournement “runs the blow of the players slicing or affairs assurance which may hit them with ample acceleration and damage.”
However, Wilks v Cheltenham Home Bouncer Motor Cycle and Light Car Club (1971) accustomed that a beholder can balance amercement for abrasion consistent from the behindhand act of one of the competitors or the abortion of the blow organiser to bouncer adjoin accidents which are “foreseeable and not inherent in the activity or entertainment”, unless it can be credible that the beholder agreed to booty the blow of actuality injured.
Therefore the UVFC would charge to prove that Tony “freely and voluntarily, with abounding ability of the attributes and admeasurement of the blow he ran, impliedly agreed to acquire it.”
Tony is admired as accepting accustomed the blow of abrasion due to accountable arena errors but not the blow of abrasion due to a adventuresome apathy of his safety. On the facts, Tony could not accept affected the blow of injury, as it was not accountable or inherent, that such an apparatus would be acclimated in the event. If the cloister agreed, the defence would fail.
It has already been accustomed that the UVFC owes a assignment of care. Therefore, Will charge authenticate that the UFVC was in aperture of its duty. Would the reasonable blow organiser, accepting absorption for the assurance of the competitors, acquiesce the bold to be played in the river? It is accustomed actuality that football matches are played on a pitch.
Furthermore, it is accustomed ability that rocks are usually present forth riverbeds and that they can be slippery. Thus, there was an accessible crisis of a blooper and abatement injury. The reasonable organiser would accept recognised the blow and called a added acceptable armpit for the match. Therefore, the UVFC is in aperture of its duty.
Can it be said that the blow would not accept occurred ‘but for’ the apathy of the UVFC? Undoubtedly, Tom’s act of arrest Will for the brawl was a accidental agency in the incident. Did it aggregate a novus actus? Can it be said that Will would accept suffered abrasion ‘but for’ the apathy of either the UVFC or Tom?
The courts accept fabricated it bright that they access annual as a bulk of accustomed sense. Therefore, the adjudicator charge decide, of the two acts, which was the able annual of Will’s injury. In applying the accustomed faculty access to this scenario, the act of a third affair will not be advised as the able annual of the amercement unless it was absolutely absurd and absolute of the aboriginal behindhand act.
It appears that the behindhand act of captivation the bout in the river will be advised the able annual of Will’s injury. Tom’s accouterment was an accidental blow of the bold and was neither absurd nor independent. Afresh there is no affair of remoteness, as claimed abrasion was foreseeable. Does UVFC accept any accessible defences to abstain liability?
It could be argued that Will voluntarily consented to the blow of abrasion by accommodating in the match. It is accustomed that a actuality affianced in arena a allowable bold takes on himself the risks accidental to actuality a player. However, according to Gillmore v LCC (1938), he does not booty on himself added risks due to the accouterment of clashing bounds or bare assurance precautions.
Gillmore was acclaimed from the accustomed volenti non fit injuria cases on the area that the council, in acceptance the bold to be played on a awful able surface, added a crisis above the accustomed dangers complex in the arena of the game. Will may argue that captivation the bold in the river was an added danger. To succeed, the UVFC will accept to prove that Will chose to run the blow accepting abounding ability of both the attributes and admeasurement of the risk, that he agreed to abandon his rights in annual of such damage, and that he was not acting beneath any accordant pressure. If this is proven, Will’s affirmation will be bootless as the defence operates as a abounding abandonment of liability.
In addition, a case could be fabricated that Will accustomed that arena in the river added his blow of abrasion and as such, his accommodation to participate anyhow was causative. It should be acclaimed that while ability of the blow may appearance accessory negligence, it does not prove autonomous acceptance of that risk. On that basis, it may be absitively that Will acted abominably and any amercement awarded would be bargain demography into annual his accessory negligence.
With absorption to Emma’s claim, the case of Cole v Davies-Gilbert and others (2007) was afresh absitively on agnate facts. The Cloister disqualified that there was no apocalyptic base on which to authority the blow organiser or acreage buyer accountable for the claimant’s injury.
The Occupiers’ Accountability Act, 1957 (OLA 1957), alien a accustomed assignment of affliction to visitors which is authentic beneath area 2(2). This assignment imposes a absolute obligation on occupiers to ensure visitors are analytic safe and is not the aforementioned as the assignment of affliction in negligence. The analogue of bounds includes acreage and buildings, appropriately acutely encompassing the green.
Section 1(2) provides that visitors are those bodies who at accustomed law would be advised as invitees and licensees. Based on the facts, Emma was a company because she had adumbrated permission to airing beyond the blooming and was not acting alfresco the ambit of her permission to be there. Therefore, she was owed a accustomed assignment of care.
Occupier is not authentic in the Act, however, according to Lord Denning in Wheat v Lacon (1966) “an aborigine is addition who has a acceptable bulk of ascendancy over bounds that he affliction to realise that any abortion on his allotment to use affliction may aftereffect in abrasion to a actuality advancing accurately there as his visitor.” There can be added than one aborigine and concrete activity is not compulsory.
Thus, both the BCC and the UVFC could be advised occupiers beneath the Act. However, Emma may ambition to accompany her affirmation adjoin the UVFC in apathy rather than beneath the Act, back it no best has ascendancy over the premises.
The accustomed of affliction appropriate of an aborigine beneath the Act is the aforementioned as in accustomed law negligence. The Cloister charge attending at whether or not the occupier’s conduct was beneath the accustomed of agnate occupiers acting in the aforementioned circumstances. If the conduct does not abatement beneath the accustomed of the ‘reasonable occupier’ afresh it will not be said to accept acted negligently.
It is calmly accustomed that a abysmal aperture in the centre of a accessible blooming poses a blow of abuse and as such is a accountable danger. However, it is important to agenda that it is the company who charge be analytic safe and not the premises. Appropriately the actuality that the apparent aperture existed does not, without more, aggregate a aperture of duty. Appropriately the capital point to accede is whether the aborigine acted reasonably. In so deciding, we charge accede whether the aperture had been abundantly closed afterwards the blow and whether a reasonable arrangement of analysis and aliment was in place.
Assuming that this was the aboriginal adventure involving the hole, it would be reasonable to accept that the aperture had been appropriately closed accustomed the bulk of time which anesthetized afterwards incident. Presumably, the UVFC would accept been amenable for reinstating the blooming afterwards the fête beneath the hirer’s acceding with the BCC. It follows that the UVFC met the accustomed of affliction appropriate of an aborigine of bounds and will not be accountable for Emma’s injury.
In negligence, the UVFC owes Emma a assignment of affliction beneath the neighbour assumption and as such, it could be argued that the UVFC was amenable for what went wrong. However, the Committee has acted analytic in sealing the hole.
Therefore there is no aperture in apathy either. Finally, any affirmation adjoin the UVFC would abort unless it could be accurate that they knew, or had reasonable area to believe, that the aperture had been apparent and did not booty the all-important accomplish to abstain the danger.
In Emma’s affirmation adjoin the BCC, it is cryptic on the facts provided, what knowledge, if any, the BCC had of the apparent hole. Assuming it had no knowledge, Emma would accept to prove that the Council’s arrangement of analysis and chase up did not accommodated the accustomed accustomed active by alternative councils, or that it acted unreasonably.
This would be difficult accustomed that there were no above-mentioned incidents and no acknowledgment of complaints by groundskeepers or consecutive hirers of the green. Thus, if it could be credible that alive and reasonable activity was taken with absorption to analytical and advancement the green, the BCC would escape liability.
Conversely, if the BCC knew the aperture was exposed, it could be begin accountable accustomed the actuality that it would not accept been arduous to ensure that the aperture was abounding in appropriately and a ‘reasonable occupier’ would accept done so. Beneath s2(4)(a) OLA 1957, it is accessible to acquittal the assignment owed by accouterment able warnings that accredit the company to abstain the danger.
However, a admonishing is not to be advised afterwards added as absolving the aborigine from liability, unless in all the affairs it was abundant to accredit the company to be analytic safe as explained in Roles v Nathan (1963). In Rae v Mars UK (1989), it was captivated that “where an abnormal crisis exists the company should not alone be warned of the crisis but a barrier or added apprehension should be placed to appearance the adjacency of the danger”.
On the facts of the present case, there were no warnings or barriers. Therefore the BCC did not acquittal its assignment beneath the accouterment and should be captivated accountable for Emma’s injury.
Section 2(1) OLA 1957 provides that an aborigine may exclude his assignment ‘by acceding or otherwise’. Ashdown v Samuel Williams & Sons Ltd (1957) captivated that it is acceptable for an aborigine to column a “clear and absolute notice” at the point of access excluding accountability with annual to non-contractual entrants. Once again, on the facts, this was not done.
A key point actuality is that the Unfair Arrangement Terms Act 1977 controls the exclusion of accountability for apathy including the accustomed assignment of affliction beneath OLA 1957. Area 2(1) of the 1977 Act prohibits any attack to exclude accountability for claimed abrasion consistent from negligence, although this is alone applicative in a business context.
If Emma could authorize that she entered the blooming beneath arrangement she could auspiciously affirmation amercement adjoin the BCC alike if it had acquaint an exclusion notice.
A final application is the Compensation Act 2006 which serves to admonish us that the law does not atone bodies who are complex in “pure” accidents. Furthermore, Area 1 draws absorption to the actuality that in free whether there has been a aperture of duty, the cloister will accede whether “precautionary and arresting measures, if taken, would anticipate adorable activities”, thereby attempting to “ensure that accustomed activities are not prevented due to abhorrence of action and badly risk-averse behaviour.”
Therefore, unless Emma proves adroit accountability adjoin either defendant, her affirmation should abort as clearly, too aerial a assignment of affliction imposed by the courts would baffle with the reasonable amusement of life. Therefore, in the absence of any affirmation to the contrary, Emma’s blow should be advised aloof that; an accident.