Law of Tort
4. 0 INTRODUCTION Occupiers' accountability about refers to the assignment owed by acreage owners to those who arise assimilate their land. However, the assignment imposed on acreage owners can extend aloft simple acreage buying and in some instances the landowners may alteration the assignment to others, appropriately the appellation aborigine rather than owner. The appellation aborigine itself is ambiguous aback concrete activity is not all-important for liability to arise. Occupiers' accountability is conceivably a audible anatomy of apathy in that there charge be a assignment of affliction and aperture of duty, causing damage.
The rules of absorption administer to occupiers accountability in the exact aforementioned way that they administer to apathy claims. Accountability can arise on occupiers for omissions aback their relationship gives acceleration to duty to booty activity to ensure the reasonable assurance of visitors. The law apropos to occupiers' accountability originated in accustomed law but is now absolute in two aloft pieces of legislation: Occupiers Accountability Act 1957 - which imposes an obligation on occupiers with absorption to 'lawful visitors' Occupiers Accountability Act 1984 - which imposes accountability on occupiers with absorption to bodies addition than 'his visitors'.
Different levels of aegis are accustomed beneath the two pieces of legislation with a academy akin of aegis afforded to allowable visitors. NB: Allowable visitors are owed the assignment set out in the 1957 Act; non-lawful visitors are owed the assignment set out in the 1984 Act. It is for the appellant to prove that he is a allowable aggregation and accordingly advantaged to the added favorable duties in the beforehand Act 4. 1 Occupiers( who is an occupier) At accustomed law (and beneath the statute activity is based on ascendancy and not necessarily on any appellation to or acreage absorption in the land.
Both the Occupiers Accountability Acts of 1957 and 1984 impose an obligation on occupiers rather than acreage owners. The catechism of whether a accurate actuality is an aborigine is a catechism of actuality and depends on the amount of ascendancy exercised. The analysis activated is one of 'occupational control' and there may be added than one aborigine of the aforementioned premises: In Wheat v E Lacon & Co Ltd  AC 522- Abode of Lords The appellant and her ancestors backward at a attainable house, The Golfer’s Arms in Great Yarmouth, for a holiday. Unfortunately her bedmate died aback he fell bottomward the stairs and hit his head.
The stairs were abrupt and narrow. The handrail chock-full two accomplish from the basal of the stairs and there was no ball in the light. The appellant brought an activity beneath the Occupiers Accountability Act 1957 adjoin the Brewery company, Lacon, which endemic the acreage of The Golfer’s Arms and adjoin the Managers of the Pub, Mr. & Mrs. Richardson, who active the pub as a licensee. Held: Both the Richardson’s and Lacon were occupiers for the purposes of the Occupiers Accountability Act 1957 and accordingly both owed the accustomed assignment of care. It is attainable to acquire added than one occupier.
The catechism of whether a accurate actuality is an aborigine beneath the Act is whether they acquire anatomic control. Lacon had deserted accustomed a authorization to the Richardson’s and had retained the appropriate to adjustment which gave them a acceptable amount of control. There is no affirmation of concrete occupation. However, it was begin that Lacon was not in aperture of assignment aback the accouterment of ablaze bulbs would acquire been allocation of the day to day administration duties of the Richardson’s. Aback the Richardson’s were not affair to the address the claimant’s activity failed.
Lord Denning: “wherever a actuality has a acceptable amount of ascendancy over bounds that he affliction to apprehend that any abortion on his allocation to use affliction may aftereffect in abrasion to a actuality advancing accurately there, again he is an " aborigine " and the actuality advancing accurately there is his " aggregation ": and the " aborigine " is beneath a assignment to his " aggregation " to use reasonable care. In adjustment to be an “occupier “it is not all-important for a actuality to acquire absolute ascendancy over the premises. He charge not acquire absolute occupation. Suffice it that he has some amount of control. He may allocation the ascendancy with others. Two or added may be “occupiers ".
And whenever this happens, anniversary is beneath a assignment to use affliction arise bodies advancing accurately on to the premises, abased on his amount of control. If anniversary fails in his duty, anniversary is accountable to a aggregation who is afflicted in aftereffect of his failure, but anniversary may acquire a affirmation to addition from the other. ” Concrete activity is not a requirement: Harris v Birkenhead Corp  1 WLR 279 The appellant Julie Harris was 4 years old aback she wandered off from a children’s comedy esplanade with her friend. They entered a behind abode which was due for demolition. The abode had not been anchored and the aperture was open.
They went admiral and Julie abiding austere abrasion aback she fell from a window. The abode had been accountable to a compulsatory acquirement adjustment by the council. The abode had been endemic by a clandestine freeholder and the addressee was offered addition adaptation by the council. The addressee abreast the board that she did not appetite to booty up the activity of adaptation and fabricated her own align and larboard the property. The board served 14 canicule apprehension on the buyer of their ambition to booty control of the property, but never absolutely took concrete control at the accomplishment of the 14 days.
Held: The Board had the acknowledged appropriate to booty control to dedicated the property, absolute concrete activity was not appropriate to acquire accountability as an occupier. The board were accordingly liable. 4. 1. 1 Occupiers Accountability Act 1957 The Occupiers Accountability Act 1957 imposes a accustomed assignment of affliction on occupiers to allowable visitors. By advantage of s. 1 (3) (a), the Act applies not deserted to acreage and barrio but additionally extends to anchored and adaptable structures, including any vessel, agent or aircraft. The able draft beneath the Occupiers Accountability Act 1957 includes death, claimed abrasion and draft to property. . 1. 1. 1 Allowable visitors - Allowable visitors to whom occupiers owe the accustomed assignment of care for the purposes of the Occupiers Accountability Act of 1957 include: i) Invitees - S. 1 (2) Occupiers Accountability Act 1957 - those who acquire been arrive to arise assimilate the acreage and accordingly have express permission to be there. ii) Licensees - S. 1 (2) Occupiers Accountability Act 1957 - those who have express or adumbrated permission to be there. According to S. 1(2) this includes situations breadth a authorization would be adumbrated at accustomed law. (See below) iii) Those who access pursuant to a arrangement - s. (1) Occupiers Accountability Act 1957 - For archetype advantageous guests at a auberge or advantageous visitors to a theatre achievement or to see a blur at a cinema. iv) Those entering in appliance a appropriate conferred by law - s. 2(6) Occupiers Accountability Act 1957 - For example a actuality entering to apprehend the gas or electricity meters, a badge active warrants of arrest or search) 4. 1. 1. 2 Adumbrated authorization at accustomed law In the absence of accurate permission to be on the land, a authorization may be adumbrated at accustomed law breadth there exists again aperture and no activity taken by the aborigine to anticipate bodies advancing on to the land.
This requires an acquaintance of the aperture and the danger: Lowery v Walker  AC 10 House of Lords The Appellant was afflicted by a horse aback appliance a abbreviate cut beyond the defendant’s field. The acreage had been frequently acclimated as a abbreviate cut by associates of the attainable for abounding years and the actor had taken no accomplish to anticipate bodies advancing on to the land. The actor was acquainted that the horse was dangerous. Held: The actor was liable. Whilst the appellant did not acquire accurate permission to be on the land, a authorization was adumbrated through again aperture and the defendant’s acquiescence. NB: Again aperture deserted insufficient:
Edward v Railway Executive  AC 737 A accurate atom on a railway was acclimated as a abbreviate cut on a approved basis. The fence was repaired on several occasions and whenever it was arise to acquire been interfered with. However, it would be baffled bottomward by bodies adulatory to use the railway as a abbreviate cut. Witness affidavit was to the aftereffect that the fence was in acceptable adjustment the morning of the incident. Held: No authorization was implied. The Actor had taken reasonable accomplish to anticipate bodies advancing assimilate the railway. Lord Goddard: "Repeated aperture of itself confers no license" 4. 1. 1. 3 Allure principle
The courts are added acceptable to betoken a authorization if there is article on the acreage which is decidedly adorable and acts as an allure to draw bodies on to the land. Taylor v Glasgow Corporation  1 AC 448 Abode of Lords The defendants endemic the Blooming Gardens of Glasgow, a esplanade which was attainable to the public. On the esplanade assorted blooming plants and shrubs grew. A boy of seven years ate some berries from one of the shrubs. The berries were poisonous and the boy died. The brier was not belted off and no admonishing signs were present as to the crisis the berries represented. Held: Glasgow Corporation was liable.
Children were advantaged to go assimilate the land. The berries would acquire been adorable to accouchement and represented a buried danger. The defendants were acquainted the berries were poisonous no admonishing or aegis was offered. However, aback the addition of the Occupiers Accountability Act 1984, the courts acquire been afraid to betoken a license: Tomlinson v Congleton Borough Board  3 WLR 705 The actor endemic Brereton Heath Country Park. It had ahead been a beach quarry and they adapted it in to a country esplanade and opened it up for attainable use. The defendants had created a basin on the esplanade which was amidst by albino banks.
In the hot acclimate abounding visitors came to the park. Pond was not acceptable in the basin and notices were acquaint at the access adage “Dangerous water. No swimming”. About admitting this, abounding bodies did use the basin for swimming. Rangers were active and on occasions approved to anticipate pond but some of the visitors would be abrupt to the rangers’ attempts to anticipate them and abounding connected to swim. The appellant was afflicted aback he dived into coffer baptize and bankrupt his neck. At the Court of Address it was captivated that he was a blackmailer admitting the again aperture and bare accomplish to anticipate him swimming.
They additionally declared that the admonishing signs may acquire acted as an allure to blowing adolescent men. The Court of Address was of the assessment that aback the addition of the Occupiers Accountability Act 1984, the courts should not ache to betoken a license. There was no address on this point and the appellant conceded that he was a trespasser. The Abode of Lords was accordingly anxious with the appliance on the 1984 Act. The Court of Address had captivated that the board were accountable but bargain the amercement by 2/3 beneath the Law Reform (Contributory Negligence) Act 1945.
The actor appealed the award on accountability and the appellant appealed adjoin the reduction. Abode of Lords held: The Board was not liable. No draft arose from the accompaniment of the bounds as appropriate beneath s. 1 (1) (a) Occupiers Accountability Act 1984. The draft arose from the claimant’s own action. He was a actuality of abounding adaptation who voluntarily and afterwards accountability or allure affianced in an activity which had an inherent risk. Alike if there was a draft anatomy the accompaniment of the premises, the draft was not one adjoin which the board would analytic be accustomed to activity the appellant some aegis beneath s. (3) (C). In extensive this cessation Lord Hoffman looked at the position if he had not been a blackmailer and activated the accustomed assignment of affliction owed beneath the Occupiers Accountability Act of 1957. He was of the assessment that there was no assignment to acquaint or booty accomplish to anticipate the appellant from diving as the dangers were altogether obvious. This was based on the assumption of chargeless will and that to ascendancy contrarily would abjure the amusing annual to the majority of the users of the esplanade from appliance the esplanade and lakes in a safe and amenable manner.
To appoint accountability in this bearings would beggarly closing of abounding such venues up and bottomward the country for abhorrence of litigation. He acclaimed that 25-30 such fractures occurred anniversary year nationwide, admitting added assurance measures the numbers had remained constant. 4. 1. 1. 4 Non allowable visitors The 1957 Act does not extend aegis to: ? trespassers ? Invitees who beat their permission ? Bodies on the acreage appliance a attainable appropriate of way: McGeown v Northern Ireland Housing Executive  3 All ER 53 Abode of Lords The appellant was afflicted aback she tripped in a aperture on acreage endemic by the defendant.
The acreage was a attainable appropriate of way. It was captivated that the actor was not accountable as the claimant was not a allowable aggregation beneath the Occupiers Accountability Act 1957 because she was appliance a attainable appropriate of way. • Bodies on the acreage appliance a clandestine appropriate of way: Holden v White  2 All ER 328 Court of Address The claimant, a milkman, was afflicted on the defendant’s acreage by a manhole awning which bankrupt aback he stepped on it. At the time he was carrying milk to the abode of a third affair who had a appropriate of way beyond the defendant’s land.
It was captivated that he was not advantaged to affirmation adjoin the actor aback he was appliance a appropriate of way and was not accordingly a allowable aggregation of the defendant. 4. 1. 1. 5 The accustomed assignment of affliction The accustomed assignment of affliction is set out in s. 2 (2) Occupiers Accountability Act 1957: S. 2(2) - 'The accustomed assignment of care is to booty such affliction as in all the affairs of the case is reasonable to see that the visitor will be analytic safe in appliance the bounds for the purposes for which he is arrive or permitted by the aborigine to be there. ' Thus the accustomed of affliction varies according to the circumstances.
The legislation refers to two accurate situations breadth the accustomed may vary: ? S. 2(3)(a) - an aborigine charge be able for accouchement to be beneath accurate than adults ? S. 2(3)(b) - an aborigine may apprehend that a person in the exercise of his calling will acknowledge and bouncer adjoin any appropriate risks frequently adventure to it i) S. 2(3) (a) Adolescent visitors The courts will booty into annual the age of the adolescent and akin of compassionate a adolescent of that age may be accustomed to have. They may be added adventuresome and may not acquire the attributes of assertive risks.
The aborigine does not about acquire to agreement that the abode will be safe, but deserted has to booty reasonable care. If the child’s parents are present, they charge allocation some responsibility, and, alike if they are not present, it may be accordant to the occupier’s assignment that they anticipation it advisable to acquiesce their adolescent to be breadth he was. Titchener v British Railways Board  1 WLR 1427 Abode of Lords The Claimant, a 15 year old girl, was out walking with her admirer who was 16. They took a abbreviate cut beyond a railway band and they were both hit by a train. He was asleep and she was actively injured.
There was a gap in the fence at the abode breadth they beyond and there was a alleyway arch to this gap which appropriate that there was again trespass. Additionally it was accustomed that either the Actor was acquainted of the gap or would acquire been acquainted aloft reasonable inspection. The Actor aloft the aegis of volenti beneath s. 2 (3) of the Occupiers Accountability (Scotland) Act 1960 Held: The ambit of the assignment owed to trespassers varies on the circumstances. On the facts of this case the Defendants did not owe a assignment to a 15 year old blackmailer who was absolutely acquainted of the risks.
Even if the Actor did owe a assignment of affliction the aegis of volenti beneath s. 2 (3) would succeed. Lord Ross: "In my view, the pursuer's own affirmation referred to above, alternating with the addition affirmation in the case, is, in my opinion, acceptable to authorize the aegis of volenti non fit injuria. Such aegis is attainable to the defenders beneath breadth 2 (3) of the Occupiers' Accountability (Scotland) Act 1960, and no assignment beneath breadth 2 (1) of the Act is imposed aloft an aborigine to a actuality entering on the bounds in account of risks which that actuality has agreeably accustomed as his.
The pursuer here, on her own evidence, was absolutely acquainted of the crisis of bridge a band on which trains ran, and, in my opinion, she charge be taken to acquire consented to bold the risk. There is a access in her assay which proceeded as follows: "Q. And you knew that it would be alarming to cantankerous the band because of the attendance of these trains? A. Yes. Q. Able-bodied why did you do it if you knew it would be dangerous? A. Because it was beneath to get to the brickworks. Q. You beggarly to say that you put your activity in crisis through the attendance of these trains, artlessly because it was beneath to get to the brickworks?
A. Well, afore my draft I never anytime anticipation that it would arise to me, that I would never get hit by a train, it was aloof a adventitious that I took. " “A actuality who takes a adventitious necessarily consents to booty what come” Jolley v Sutton  1 WLR 1082 Two 14 year old boys begin an deserted baiter on acreage endemic by the board and absitively to do it up. The baiter was in a thoroughly rotten activity and represented a danger. The board had ashore a apprehension on the baiter admonishing not to draft the baiter and that if the buyer did not affirmation the baiter aural 7 canicule it would be taken away. The board never took it away.
The boys had been alive on the baiter for 6-7 weeks aback one of them suffered astringent analgesic injuries, consistent in paraplegia, aback the baiter fell on top of him. The boys had jacked the baiter up to assignment on the base and the jack went through the rotten wood. The appellant brought an activity beneath the Occupiers Accountability Act 1984. The balloon adjudicator begin for the claimant. The Court of Address antipodal the decision, captivation that whilst it was accountable that adolescent accouchement may comedy on the baiter and ache an abrasion by falling through the rotten wood, it was not accountable that beforehand boys would try to do the baiter up.
The appellant appealed. Abode of Lords held: The claimant's address was allowed. The draft was that accouchement would "meddle with the baiter at the draft of some concrete injury" The absolute abrasion fell aural that description. Lord Steyn: "The ambit of the two modifiers - the absolute address in which the abrasion came about and its admeasurement - is not definitively answered by either The Wagon Mound ( No. 1) or Hughes v. Lord Advocate. It requires assurance in the ambience of an acute focus on the affairs of anniversary case. " Taylor v Glasgow Corporation  1 AC 448 Abode of Lords
The defendants endemic the Blooming Gardens of Glasgow, a esplanade which was attainable to the public. On the esplanade assorted blooming plants and shrubs grew. A boy of seven years ate some berries from one of the shrubs. The berries were poisonous and the boy died. The brier was not belted off and no admonishing signs were present as to the crisis the berries represented. Held: Glasgow Corporation was liable. Accouchement were advantaged to go assimilate the land. The berries would acquire been adorable to accouchement and represented a buried danger.
The defendants were acquainted the berries were poisonous no admonishing or aegis was offered. Phipps v Rochester Corporation  1 QB 450 A 5 year old boy was walking beyond some attainable arena with his 7 year old sister. He was not accompanied by an adult. He was afflicted aback he fell into a trench. The Corporation were not captivated accountable as an aborigine is advantaged to acquire that advisable parents would not acquiesce their accouchement to go unaccompanied to places breadth it is unsafe. Devlin J on assignment owed to accouchement “The law recognizes a aciculate aberration amid accouchement and adults.
But there adeptness able-bodied I think, be an appropriately credible acumen amid ‘big children’ and ‘little children’. …The aborigine is not advantaged to acquire that all accouchement will, unless they are allured, behave like adults; but he is advantaged to acquire that frequently little accouchement will be accompanied by a amenable person. …The albatross for the assurance of little accouchement charge draft primarily aloft the parents; it is their assignment to see that such accouchement are not accustomed to aberrate about by themselves, or at atomic to amuse themselves that the places to which they do acquiesce their accouchement to go unaccompanied are safe.
It would not be socially adorable if parents were, as a amount of course, able to about-face the accountability of attractive afterwards their accouchement from their own amateur to those bodies who arise to acquire attainable pieces of land. ” ii) S. 2(3)(b) Accustomed calling ( Trade Visitors) This accouterment applies breadth an aborigine employs an able to arise on to the bounds to undertake work. The able can be taken to apperceive and aegis themselves against any dangers that arise from the bounds in affiliation to the calling of the expert. For archetype if an aborigine engages an lectrician, the electrician would be accustomed to apperceive the dangers inherent in the assignment they are active to do. Roles v Nathan  1 WLR 1117 Court of Address Two brothers, Donald and Joseph Roles were affianced by Mr. Nathan as chase sweeps to apple-pie the flues in a axial heating arrangement at Manchester Assembly Rooms. The flues had become alarming due to carbon monoxide emissions. A heating architect had warned them of the danger, however, the brothers told him they knew of the dangers and had been flue inspectors for abounding years.
The architect monitored the bearings throughout the day and at one point ordered everybody out of the architecture due to the levels of carbon monoxide. The brothers abandoned this admonition and connected with their work. The architect again the adjustment and the brothers became calumniating and told him they knew bigger than him and did not charge his advice. The architect forcibly removed them from the building. It was agreed that they would arise aback the afterward day to complete the assignment aback the effluvium would acquire gone.
They were additionally told they should not do the assignment whilst the fires were lighted. However, the abutting day the brothers were begin asleep in the basement accepting alternate the antecedent black to complete the assignment aback the fires were lit. Their widows brought an activity beneath the Occupiers Accountability Act 1957. Held: The actor was not liable. The dangers were appropriate risks frequently adventure to their calling. The warnings issued were bright and the brothers would acquire been safe had they heeded the warnings. Salmon v Seafarer Restaurant  1 WLR 1264
The actor endemic a angle and chips shop. One night he larboard the dent fryer on and bankrupt the boutique for the night. This acquired a blaze and the blaze casework were declared to put out the fire. The appellant was a blaze man afflicted in an access whilst angry the fire. He had been befuddled to the arena whilst basement a ladder on a burst roof. The actor approved to escape accountability by invoking s. 2 (3) (b) of the Occupiers Accountability Act 1957 in that the blaze fighter could be accustomed to bouncer adjoin appropriate risks inherent in angry fires.
Held: The actor was liable. Breadth it can be advancing that the blaze which is abominably started is of the blazon which could crave firemen to arise to extinguish that fire, and where, because of the actual attributes of the fire, aback they arise they will be at draft alike if they exercise all the accomplishment of their calling, there is no acumen why a advocate should be at any disadvantage in claiming compensation. The assignment owed to a advocate was not bound to the aberrant risks associated with angry blaze but continued to accustomed risks.
Ogwo v Taylor  3 WLR 1145 Abode of Lords The Actor attempted to bake off acrylic from the fascia boards beneath the bump of his abode with a draft lamp and in so accomplishing set blaze to the premises. The blaze army were declared and the Claimant, an acting arch fireman, and a aide entered the abode cutting breath accoutrement and the accustomed fireman's careful accouterment and armed with a hose. The two firemen were able, with the aid of a step- ladder, to clasp through a baby bear to get into the roof space. The calefaction aural the roof amplitude was intense.
The Appellant suffered austere bake injuries to his aerial anatomy and face from baking beef which charge acquire penetrated his careful clothing. Held: A assignment of affliction was owed to a able fireman. There was no affirmation that the draft be exceptional. The aegis of volenti had no application. Lord Bridge: "The assignment of able firemen is to use their best endeavors to extinguish fires and it is attainable that, alike authoritative abounding use of all their skills, training and specialist equipment, they will sometimes be credible to assertive risks of injury, whether the blaze is declared as "ordinary" or "exceptional. If they are not to be met by the article of volenti, which would be absolutely abhorrent to our abreast notions of justice, I can see no acumen whatever why they should be captivated at a disadvantage as compared to the believer advantaged to adjure the assumption of the declared "rescue" cases. " iii) Warnings and warning signs It may be attainable for an aborigine to acquittal their assignment by giving a admonishing some crisis on the premises(‘Loose carpet’; ‘slippery floor’) - See Roles v Nathan  1 WLR 1117 above) However, S. (4)(a) Occupiers Accountability Act 1957 provides that a admonishing accustomed to the visitor will not be advised as absolving the aborigine of accountability unless in all the affairs it was abundant to accredit the aggregation to be analytic safe. The aborigine i. e alone attempting to accomplish or to acquittal his assignment of care: he is not attempting to exclude liability. Is article glace has been spilt on the attic of a shop, the aborigine can (a) abutting the shop, (b) apple-pie up the spillage or (c) accord a admonishing so that the aggregation can abstain the atom or footfall gingerly.
The admonishing must cover the crisis that in actuality arises: White v Blackmore  3 WLR 296 Mr. White was asleep at a Jalopy car chase due apathy in the way the assurance ropes were set up. A car comatose into the ropes about 1/3 of a mile from the abode breadth Mr. White was standing. Consequently he was catapulted 20 bottom in the air and died from the injuries received. Mr. White was a disciplinarian in the chase but at the time of the adventure he was amid contest and continuing abutting to his family. He had active a competitors account which absolute an exclusion clause.
There was additionally a admonishing assurance at the access to the breadth which declared that Jalopy antagonism is alarming and the organizers acquire no accountability for any abrasion including afterlife howsoever caused. The programme additionally absolute a agnate clause. His added brought an activity adjoin the organizer of the blow who dedicated on the breadth of volenti and that they had finer afar liability. Held: The defence of volenti was unsuccessful. Whilst it he may acquire been volenti in affiliation to the risks inherent in Jalopy racing, he had not accustomed the draft of the behindhand architecture of the ropes.
However the actor had auspiciously afar accountability (Lord Denning MR dissenting) Lord Denning MR: "The Act preserves the article of volenti non fit injuria. It says in Breadth 2(5) that: "the accustomed assignment of affliction does not appoint on an aborigine any obligation to a aggregation in account of risks agreeably accustomed as his by the visitor". No agnosticism the aggregation takes on himself the risks inherent in motor racing, but he does not booty on himself the draft of abrasion due to the defaults of the organizers.
People go to chase affairs to adore the sport. They like to see the competitors demography risks, but they do not like to booty risks on themselves, alike admitting it is a alarming sport, they expect, and accurately expect, the organizers to arrect able barriers, to accommodate able enclosures, and to do all that is reasonable to ensure their safety. If the organizers do aggregate that is reasonable, they are not accountable if a antagonism car leaps the barriers and crashes into the army - see Hall v. Brooklands (1933) 1 K. B. 206.
But, if the organizers abort to booty reasonable precautions, they cannot alibi themselves from accountability by invoking the article of volenti non fit injuria: for the simple acumen that the actuality afflicted or asleep does not agreeably acquire the risks arising from their appetite of reasonable care, see Slater v. Clay Cantankerous Co. (1956) 2 Q. B. 20B; Wooldridge v. Summers (1963) 2 Q. B. at folio 69; Nettleship v. Weston (1971) 2 Q. B. at folio 201. " There is no assignment to acquaint adjoin attainable risks: Darby v National Trust  EWCA Civ 189 Court of Address The claimant’s husband, Mr.
Darby, drowned in a pond endemic by the National Trust (NT). The pond was one of bristles ponds in Hardwick Hall abreast Chesterfield. Two of the ponds were acclimated for fishing and NT had taken accomplish to anticipate the use of those ponds for pond or paddling. However, with commendations to the pond in which the blow occurred, NT had done annihilation to anticipate visitors appliance the pond and it was accustomed for visitors to use the pond for canoeing and pond during the balmy summer months. On the day in catechism Mr. Darby had been canoeing with his accouchement about the bend of the pond.
He again swam to the average to comedy a bold he had generally played whereby he would go beneath baptize and again bob up to the surface. However, he got into adversity and drowned. The appellant argued that because of NT’s cessation in preventing swimmers appliance the pond, both she and her bedmate had afflicted the pond was safe for swimming. Held: NT was not liable. The draft to swimmers in the pond was altogether obvious. There was no assignment to acquaint of an attainable draft Cotton v Derbyshire Dales District Board  EWCA Civ 17 Court of Appeal
The claimant, a 26 year old man, had gone out for the day with a accumulation of accompany and his fiance over the Easter coffer holiday. They had visited 3 pubs breadth the appellant had bashed about 4 pints. They again headed arise a bounded adorableness atom declared Matlock Spa to go for a hillside airing by a river. The parties were in aerial alcohol and became separated. The appellant and his fiance drifted from the alleyway and he was actively afflicted aback he fell off a cliff. There was a assurance at one access to Matlock advertence “For your own amusement and assurance amuse accumulate to the footpath.
The cliffs can be actual dangerous, and accouchement charge be kept beneath abutting supervision. ” However, there was no such assurance at the access acclimated by the claimant. The appellant brought an activity based on the Occupiers Accountability Act 1957 for the abortion to abundantly acquaint him of the risk. Held: There was no obligation to acquaint of an attainable risk. The appellant would acquire been acquainted of the actuality of the bluff so such a admonishing would not acquire afflicted events. Staples v West Dorset District Board  EWCA Civ 30 Court of Address The appellant burst his hip aback he slipped and fell off a anchorage wall.
The anchorage bank was accustomed as The Cobb and was a acclaimed day-tripper allure frequently acclimated as a promenade. The bend of The Cobb was covered with algae and acutely glace aback wet. The appellant had beneath in the breadth afflicted by the algae to booty a photo of his friends, aback he slipped and fell off a 20 bottom bead landing on rocks below. He brought an activity based on the Occupiers Accountability Act 1957 arguing that no admonishing signs were present as to the dangers of slipping. Held: The dangers of bottomward on wet algae on a angled anchorage bank were attainable and accustomed to the claimant. Accordingly there was no assignment to warn. v) Dangers arising from accomplishments undertaken by absolute contractors- S. 2(4)(b) Occupiers Accountability Act 1957 An aborigine is not accountable for dangers created by absolute contractors if the aborigine acted reasonably in all the affairs in entrusting the assignment to the absolute architect and took reasonable accomplish to amuse himself that the work agitated out was properly done and the architect was competent. Ferguson v Welsh  1 WLR 1553 House of Lords Sedgefield District Council, in aftereffect of a development plan to body cloistral accommodation, affianced the casework of Mr.
Spence to annihilate a building. It was a appellation of the arrangement that the assignment was not to be sub-contracted out. In aperture of this term, Mr. Spence affianced the casework of the Welsh brothers to backpack out the annihilation who in about-face affianced the casework of Mr. Ferguson to assist. Mr. Ferguson suffered austere abrasion consistent in abiding aeroembolism aback a bank he was continuing on burst due to the alarming practices operated by the Welsh brothers. He brought an activity adjoin the Council, Mr. Spence and the Welsh brothers. The balloon adjudicator captivated that the Welsh Brothers were accountable but that Mr.
Spence and the Board were not liable. Mr. Ferguson appealed adjoin the award adjoin the Board aback the Welsh Brothers (or Mr. Spence) had the funds or allowance to accommodated liability. Held: The address was dismissed. Mr. Ferguson was a allowable aggregation admitting the article abhorrent sub-contracting aback Mr. Spence would acquire credible or apparent ascendancy to allure him on to the land. However, the crisis arose from the alarming arrangement of assignment adopted by the Welsh Brothers not the accompaniment of the premises. Whilst there was affirmation that Mr.
Spence had sub-contracted annihilation assignment to those active alarming practices on previous occasions, there was no affirmation that the Board were acquainted of this. Gwilliam v West Hertfordshire Hospital NHS Trust  EWCA Civ 1041 Court of Address The claimant, a 63 year old woman, was afflicted at a summer fair hosted by West Hertfordshire Hospital. She was afflicted whilst appliance a ‘splat wall’ whereby participants would animation off a trampette adjoin a bank and become absorbed to the bank by agency of Velcro material. The abrasion occurred as a aftereffect of behindhand set up of the equipment.
The accessories was provided by a business declared ‘Club Entertainments’ who were an absolute architect affianced by the Hospital. Club Entertainment’s attainable accountability allowance had asleep four canicule afore the blow and appropriately they had no awning for the injury. They agreed to achieve her affirmation for ? 5,000. Mrs. Gwilliam brought an activity adjoin the hospital based on their abortion to ensure that the ball abiding was covered by attainable accountability insurance. She claimed the aberration amid the ? 5,000 and what she would acquire accustomed had they been covered by insurance.
Held: The Hospital owed a assignment of affliction Beneath the Occupiers’ Accountability Act 1957 this assignment did extend to blockage whether the absolute architect had allowance awning aback this would be accordant to whether they were competent. However, there was no aperture of assignment aback the Hospital had enquired and had been told by Club Ball that they had allowance cover. There was no assignment to audit the allowance abstracts to ensure that awning was adequate. 4. 1. 3 Defenses applicative to Occupiers Accountability Act 1957 Volenti non fit injuria - s. (5) OLA 1957 - the accustomed assignment of affliction does not appoint an obligation on occupiers in account of risks agreeably accustomed by the visitor. The catechism of whether the draft was willingly accepted is absitively by the accustomed law principles. Accessory apathy - Amercement may be bargain beneath the Law Reform (Contributory Negligence) Act 1945 breadth the aggregation fails to booty reasonable affliction for their own safety. Exclusion of Accountability - s. 2(1) OLA 1957 allows an aborigine to extend, restrict, exclude or adapt his assignment to visitors in so far as he is chargeless to do so.
White v Blackmore  3 WLR (discussed earlier) Breadth the aborigine is a business the adeptness to exclude liability is accountable to the Unfair Arrangement Agreement Act 1977 4. 1. 2 Occupiers Accountability Act 1984 The accustomed law originally took a acrid appearance of the rights of those who were not accurately on the land. (These bodies are usually referred to as trespassers, but he chic is added than those who accomplish the abomination of aperture to land: it includes those automatic on the land). The Occupiers Accountability Act 1984 imposes a assignment on occupiers in affiliation to bodies 'other than his visitors' (S. 1 (1) (a) OLA 1984).
This includes trespassers and those who beat their permission. Aegis is alike afforded to those breaking into the bounds with bent absorbed see Revill v Newbery  2 WLR 239. Whilst it may at aboriginal arise acrid to appoint a assignment on occupiers for those that acquire arise on to their acreage alien and afterwards permission, accountability was originally accustomed at accustomed law for adolescent trespassers breadth the aborigine was acquainted of the crisis and acquainted that trespassers, including accouchement would appointment the danger. British Railway Board v Herrington  AC 877 overruling Addie v. Dumbreck  AC 358.
Addie v Dumbreck  AC 358 House of Lords the actor endemic Appearance Esplanade Colliery which was anchored in a acreage adjoining to a road. There was a fence about the ambit of the acreage although there were ample gaps in the fence. The acreage was frequently acclimated as a abbreviate cut to a railway base and accouchement would use it as a playground. The actor would generally acquaint bodies off the acreage but the attempts were not able and no absolute attack was fabricated to ensure that bodies did not arise assimilate the land. A adolescent came on to the acreage and was asleep aback he climbed assimilate a allocation of absorption apparatus.
Held: No assignment of affliction was owed to trespassers to ensure that they were safe aback advancing assimilate the land. The deserted assignment was not to administer abuse willfully. Viscount Dunedin: "In the present case, had the adolescent been a licensee, I would acquire captivated the defenders liable; secus if the complainer had been an adult. But, if the actuality is a trespasser, again the deserted assignment the freeholder has arise him is not maliciously to abuse him; he may not shoot him; he may not set a bounce gun, for that is aloof to align to shoot him afterwards alone battlefront the shot.
Other illustrations of what he may not do adeptness be found, but they all arise beneath the aforementioned head—injury either anon awful or an acting so adventuresome as to be alike to awful acting. " 'Occupier' is accustomed the aforementioned acceptation as beneath the 1957 Act (S. 1 (2) OLA 1984). Aback the Occupiers Accountability Act 1984 applies to trespassers, a lower akin of aegis is offered. Appropriately the actuality that death and claimed abrasion are the only able forms of draft and occupiers acquire no assignment in affiliation to the acreage of trespassers. (S. 1 (8) OLA 1984). Additionally the assignment deserted arises aback assertive draft factors are present. . 1. 2. 1 The affairs giving acceleration to a assignment of affliction S. 1 (3) Occupiers Accountability Act 1984 an aborigine owes a assignment to addition (not actuality his visitor) if: (a) He is acquainted of a the crisis or has reasonable breadth to accept that it exists (b) He knows or has reasonable breadth to accept the addition is in the around of the crisis or may arise into the around of the crisis (c) The draft is one in which in all the circumstances of the case, he may analytic be accustomed to activity the addition some aegis If all three of these are present the aborigine owes a assignment of affliction to the non-lawful visitor.
The belief in s. 1 (3) charge be bent accepting absorption to the affairs prevailing at the time the declared aperture of assignment resulted in abrasion to the claimant: Donoghue v Folkestone Properties  EWCA Civ 231 Court of Address Mr. Donoghue, the claimant, spent Boxing Day black in a attainable abode declared Scruffy Murphy’s. It was his intention, with some of his friends, to go for a midnight bathe in the sea. Unfortunately in his alacrity to get into the baptize he dived from a slipway in Folkestone anchorage endemic by the actor and addled his arch on an underwater obstruction, breaking his neck.
At his balloon affirmation was adduced to the affect that the slipway had generally been acclimated by others during the summer months to dive from. Security guards active by the actor had chock-full bodies from diving although there were no admonishing signs put out. The obstruction that had afflicted the appellant was a abiding affection of a grid-pile which was abysmal beneath the water. In aerial advance this would not acquire airish a draft but aback the advance went out it was a danger. The claimant’s activity was based on the Occupiers Accountability Act 1984. Mr. Donoghue was 31, physically fit, a able scuba diver who had accomplished in the Royal Navy.
It was allocation of his basal ability as a diver that he should analysis baptize levels and obstructions afore diving. The balloon adjudicator begin for the appellant but bargain the amercement by 75% to reflect the admeasurement to which he had bootless to booty affliction of his own assurance beneath the Law Reform (Contributory Negligence) Act 1945. The actor appealed alienated that in assessing whether a assignment of affliction arises beneath s. 1(3) anniversary of the belief charge be adjourned by advertence to the alone characteristics and attributes of the accurate appellant and on the accurate aperture aback the adventure in actuality occurred i. . aback assessing whether the actor should be acquainted of whether a actuality may arise into the around of the danger, it should be adjourned on the likelihood of addition diving into the baptize in the average of the night in mid-winter rather than attractive at the incidences of diving during the summer months. Held: Address allowed. The analysis of whether a assignment of affliction exists beneath s. 1(3) Occupiers Accountability Act 1984 charge be bent accepting absorption to the affairs prevailing at the time of the declared aperture resulted in abrasion to the claimant. At the time Mr.
Donoghue abiding his injury, Folkestone Properties had no acumen to accept that he or anyone abroad would be pond from the slipway. Consequently, the belief set out in s. 1 (3) (b) was not annoyed and no assignment of affliction arose. 4. 1. 2. 2 Accustomed of affliction S. 1 (4) OLA 1984 - the assignment is to booty such affliction as is reasonable in all the affairs of the case to see that the addition does not ache abrasion on the bounds by acumen of the crisis concerned. Revill v Newbery  2 WLR 239 Court of Address Mr. Newbery was a 76 year old man. He endemic an allocation which had a afford in which he kept assorted admired items.
The afford was accountable to accepted breaking and vandalism. Mr. Newbery had taken to sleeping in his afford armed with a 12 bore attempt gun. Mr. Revill was a 21 year old man who on the night in question, accompanied by a Mr. Grainger, and went to the afford at 2. 00 am in adjustment to aperture in. Mr. Newbery awoke, best up the attempt gun and accursed it through a baby aperture in the aperture to the shed. The attempt hit Mr. Revill in the arm. It anesthetized appropriate through the arm and entered his chest. Both parties were prosecuted for the bent offences committed. Mr. Revill pleaded accusable and was sentenced. Mr. Newbery was acquitted of wounding. Mr.
Revill brought a civilian activity adjoin Mr. Newbery for the injuries he suffered. Mr. Newbery aloft the aegis of ex turpi causa, accident, aegis and accessory negligence. Held: The Claimants activity was acknowledged but his amercement were bargain by 2/3 beneath the Law Reform (Contributory Negligence) Act 1945 to reflect his albatross for his own injuries. On the appliance of ex turpi causa Neill LJ: "For the purposes of the present acumen I do not acquisition it all-important to accede added the collective bent activity cases or the appliance of the article of ex turpi causa in addition areas of the law of tort.
It is acceptable for me to confine my absorption to the accountability of addition in the position of Mr. Newbery arise an advancing burglar. It seems to me to be bright that, by assuming breadth 1 of the 1984 Act, Assembly has absitively that an aborigine cannot amusement a burglar as an outlaw and has authentic the ambit of the assignment owed to him. As I acquire already indicated, a actuality addition than an aborigine owes a agnate assignment to an burglar such as Mr. Revill. In branch 32 of their 1976 Report the Law Commission alone the advancement that there should be no assignment at all owed to a blackmailer who was affianced in a austere bent enterprise. Ratcliff v McConnell and Harper Adams Academy  EWCA Civ 2679 Court of Address The appellant was a apprentice at Harper Adams College. One night he had been out bubbler with accompany on campus and they absitively they would go for a bathe in the academy basin which was 100 yards from the apprentice bar. They climbed over a bound aboideau into the attainable air pond pool. The basin had a apprehension at the access which declared the basin would be bound and its use banned amid the hours of 10pm -6. 30am.
There was a apprehension at the coffer end in red on a White accomplishments advertence ‘Shallow end’ and a apprehension at the abysmal end advertence ‘Deep end, coffer dive’. However, the boys did not see the signs because there was no light. The three boys undressed. The appellant put his toe in the baptize to analysis the temperature and again the three of them lined up alternating the ancillary of the basin and dived in. Unfortunately the point at which the appellant dived was shallower than breadth the addition boys dived and he abiding a burst abutting and was assuredly paralyzed. The appellant brought an activity in the law of apathy and beneath the Occupiers
Liability Acts 1957 and 1984. The balloon adjudicator captivated that the appellant was a blackmailer aback he was not acceptable to go into the basin and that the Academy owed a assignment of affliction beneath the 1984 Act aback the basin had generally been acclimated by acceptance in the banned hours so the Academy should acquire been acquainted that the appellant was aural a chic of bodies who may arise into the danger. The aperture was in not demography added bactericide activity to anticipate use of the pool. The claimant’s amercement were, however, bargain by 60% beneath the Law Reform (Contributory Negligence) Act 1945.
The defendants appealed alienated the affirmation relied on by the appellant in agreement of again aperture all took abode afore 1990 afore they started locking the gates. Held: The address was allowed. The appellant was not advantaged to compensation. The actor had taken greater accomplish to abate aperture by acceptance aback 1990. The deserted blow of aperture to the basin in the four years above-mentioned to the claimant’s injury, accompanying to acceptance from a visiting academy and accordingly there was no acumen for the academy to doubtable the acceptance had arise into the crisis so no assignment of affliction arose beneath s. (3) (b) Occupiers Accountability Act 1984. Additionally the balloon adjudicator had afield articular the danger. The basin itself was not alarming it was the activity of diving into it which was unsafe. This was an attainable crisis to which there was no assignment to warn. By surrounding the basin with a 7 bottom aerial fence, a bound aboideau and a prohibition on use of the basin in the declared hours the Academy had offered a reasonable akin of protection. The assignment may be absolved by giving a admonishing or black others from demography the draft S. (5) Occupiers Accountability Act 1984 - agenda there is no obligation in affiliation to the admonishing to accredit the aggregation to be analytic safe - adverse the accouterment beneath the 1957 Act. Tomlinson v. Congleton Borough Board  3 WLR 705 House of Lords (discussed above) 4. 1. 2. 3 Defenses Volenti non fit Injuria - s. 1 (6) OLA 1984 - no assignment of affliction is owed in account of risks agreeably accustomed by the visitor. The catechism of whether the draft was agreeably accustomed is absitively by the accustomed law principles. Accessory apathy - Amercement may be bargain beneath the Law Reform Accessory Negligence) Act 1945 breadth the aggregation fails to booty reasonable affliction for their own safety. Exclusion of accountability - Whereas the 1957 Act allows an aborigine to exclude accountability (subject to the accoutrement set out in UCTA 1977), the 1984 Act does not especially advise such a right. This may be an blank by the assembly and it may be attainable to exclude accountability aback it is not especially banned or it may be that the legislature was of the opinion that it should not be attainable to exclude accountability for the basal akin of aegis afforded to trespassers. . 2 Accountability for Manufacturers The attenuated aphorism in Donoghue v Stevenson  AC 562 recognizes that manufacturers owed a assignment of affliction to ultimate consumers of the bogus products. Over the years this assignment was continued and aesthetic and took on in convenance some of the characteristics of austere liability. Assembly has now imposed such a austere accountability on manufacturers beneath the Consumer Aegis Act 1997.
Although this act does not especially acquire aftereffect in abode of the rules of accustomed law( in the way that the Occupiers’ Accountability Act do, in convenance it affords added satisfactory remedies , and the attenuated aphorism in Donoghue v Stevenson charge no best be advised in detail. 4. 3 Accountability for administration An agent afflicted at assignment has three attainable accomplishments adjoin the employer. i) An activity in apathy for aperture of the employer’s assignment of care. This is the affair this affiliate ii) An activity for aperture of approved duties imposed by assembly on the employer. The attack of the abomination of aperture of approved assignment will be explained later.
The agreeable of the assorted regulations prescribing assurance equipments, clothing, procedures and so alternating abatement alfresco the abridgement and are allocation of a specialist advance in application law. iii) The employer may be vicariously accountable for the torts committed by addition employee. The assumption of and the justifications for commissioned accountability will be explained in detail later. For the present if is abundant to agenda that an employer (even if not alone at fault) is in law accountable for the torts committed by advisers in the advance of their employment. The inter- affiliation amid these accomplishments is of some interest.
Before 1948 an activity based on commissioned accountability was not accessible because of the article of ‘common employment’. If A, an agent of X Ltd, tortuously afflicted B, addition agent of X ltd, again X Ltd would be accountable to C, but not to B, because A and B were in the ‘common employment’ of X ltd. This article provided aegis for the employer adjoin attainable big-ticket abomination claims. To account this about the courts (a) adapted the accustomed law apathy activity in a way that advantaged the agent and (b) acceptable civilian activity for amercement to be brought for breaches of assurance regulations.
The article of accustomed application was abolished by statutes in 1948(Law Reform (Personal Injuries) Act 1948. So advisers now acquire a commissioned accountability affirmation and additionally the annual of the adapted accustomed law activity and accomplishments for aperture of approved duty. The Attributes of the Accustomed Law Activity The employer’s accustomed law assignment of affliction differs from the accustomed assignment of care. It is said to be ‘non-delegable’. This is best acutely explained by Lord Hailsham of St Maryleborne in McDermid v Nash Dredging AC 906 as follows this appropriate faculty does not absorb the hypothesis that the assignment cannot be delegated in the faculty that it is butterfingers of actuality the accountable of delegation, but deserted that the employer cannot escape accountability if the assignment has been delegated and again not appropriately performed’. The facts of the case were that M was active as a deckhand, by the defendants, but was beatific by them to assignment on a address operated by a altered aggregation (in actuality the ancestor aggregation of the defendants). He was actively afflicted aback the captain of the address (not an agent of the defendants) abominably operated the assurance systems.
The defendants were accountable because their assignment had been delegated to the advisers of the ancestor aggregation and not appropriately performed. Details of this breadth would be discussed aback attractive at commissioned liability. But in arbitrary it is account acquainted that administration owe a assignment of affliction to their employees, but this assignment is altered in attributes from the accustomed assignment of care, actuality declared as non-delegable. Court are now developing attack beneath which advisers can additionally balance for the furnishings of assignment accompanying stress. ==================================END========================================
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