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Showing posts from July, 2019

Tort - Occupiers liability cases IX

In Perry v Harris (2008) we are once again confronted with a situation where an occupier has organized a gathering on his or her premises and has either equipment that the visitors can use or has shows for the benefit of the visitors along the lines of Gwilliam v West Hertfordshire Hospital NHS Trust (2002) and Bottomley v Todmorden (2003).
In this instance, the defendants organized a party and the children in attendance were allowed to use a bouncy castle. The plaintiff aged 11 years old was injured, while using the castle, when one of the bigger boys decided to get into the act. The plaintiff sued. The court decided that the injury that the boy sustained was not a result of the defendants’ negligence but rather that of the parents.
While it is impossible to impose a duty on parents to supervise their children all the time, imposing such a duty would be contrary to public policy, it was, on the other hand, reasonable to expect parents to supervise their children in instances or in situ…

Tort - Occupiers liability cases VIII

In Bottomley v Todmorden (2003) the defendants, a cricket club, organized a show and part of the show was a fireworks display. During the show, the contractors in charge of the fireworks display called upon the plaintiff to light one of the fireworks, a particularly large mortar and when the plaintiff set the mortar alight, it exploded and as a result the plaintiff sustained or incurred injuries. The plaintiff sued see Gwilliam v West Hertfordshire Hospital NHS Trust (2002). The court held that an organizer was liable or accountable for not selecting a reasonably competent contractor.
Occupiers could at times employ others to carry out acts that are normally considered or deemed to be dangerous provided that the contractors that they employed to carry out the tasks or duties exercised due care and caution. The defendants were held to owe the plaintiff a duty of care.
In Atkins v Butlin’s Skyline Ltd (2005) the plaintiff was blind and he was holidaying with his wife and daughter at the t…

Tort - Occupiers liability cases VII

In Blackpool and Fylde College v Burke (2001) the plaintiff was an in-campus student. It was customary for the college students to attend fitness classes regularly and one morning when the plaintiff attended a fitness class, she was standing beside a stack of chairs, with her back to the chairs, talking to a friend when the stack of chairs fell on her from behind and as a result the plaintiff sustained serious injuries including aggravating an existing knee condition.
The plaintiff sued. The court held that the defendants did not owe the plaintiff a duty of care to ensure that the chairs were stacked safely. If the plaintiff were allowed to succeed it would impose a duty on anyone else that stacked chairs and if such a duty was imposed it might not be practical. Did the college have a duty to warn anyone in the room that there were stacked chairs and that the chairs might pose a danger? Stacked chairs ordinarily, if they were stacked in the proper manner, will not pose a danger and the…

Tort - Occupiers liability cases VI

In Rae v Mars (UK) Ltd (1990) it was held that when there are dangers ahead, especially due to poor visibility, there must be sufficient signs posted, notice given or reasonable attempts made to alert a visitor of the dangers ahead.
According to the facts of the case a deep pit was dug close to the entrance, on the inside of a shed, and there was no lighting in the shed and therefore the pit posed a danger to any visitor or trespasser who entered the shed.
The decision is important especially when it comes to children because while adults are under a duty to exercise due care and caution under most circumstances, even when they are walking down the street, the same cannot be said for children and even if they are repeatedly told or warned about the dangers of doing something, there is still a very high possibility or probability that they are going to disregard or ignore those warnings.
Let’s go back briefly to the example of the staircase. It is probable that adults, once they are aware…

Tort - Occupiers liability cases V

In Glasgow Corporation v Taylor (1922) the defendants owned a botanical garden that was open to the public. One of the visitors, a young boy aged 7 ate some of the berries that grew on one of the shrubs that were on display and subsequently died as a result. The parents sued. The court held that the defendants, the owners and operators of the botanical garden were liable and that they had failed to take adequate steps or measures to protect children from harm that was foreseeable.
Children especially those who grow up in the country or in regional areas, where berry shrubs grow in the wild, are prone to plucking berries off shrubs and eating them and it’s fairly obvious that a child aged 7 would not be able to distinguish between berries that were edible and berries that were not. The council was held to be liable, see also Harris v Birkenhead (1976).
In Videan v British Transport Commission (1963) a 6-year boy somehow managed to make his way on to a railway track and his father the sta…

Tort - Occupiers liability cases IV

In Robert Addie v Dumbreck (1929) the defendants owned a piece of land adjacent to their colliery. The land was fenced off but there were holes in the fences that people could use to cut across to reach a railway station. The defendants had warned them off on several occasions but no one paid any attention to their warnings. One of the boys who entered the property climbed on to one of the machines and fell off and was injured as a result. The matter was brought before a court and it was held that there was no duty that was owed because the boy was a trespasser and did not have any type of license, implied or otherwise, to be on the property see also Edward v Railway Executive (1952).
In Phipps v Rochester Corporation (1955) a young 7-year-old girl and her brother aged 5 were walking together and entered the defendants land. The young boy subsequently fell into a trench and was injured as a result. The parents sued. The court held that the defendants were not occupiers in this instance…

Tort - Occupiers liability cases III

In Eric Glennie v University Court of the University of Aberdeen (2013) the plaintiff slipped and fell while he was playing tennis on a court owned by the defendant. There was a patch of green moss growing on the astro-turf and the plaintiff slipped when he stepped on it and as a result sustained injuries. While the defendants admitted that they owed the plaintiff a duty of care, the court held that the defendants were not liable because there was insufficient evidence to establish that it was indeed the defendants’ negligence that had caused the accident. Astroturfs were naturally more slippery than other surfaces and it was up to the plaintiff to take due care. Furthermore, there was nothing to indicate that it was the moss that had caused the accident.
In Fiona Brown v East Lothian Council (2013) the plaintiff hired a hall from the town council for her dance class (zumba). She normally conducted her classes in a gymnasium but on this particular occasion the gymnasium was unavailable…

Tort - Occupiers Liability Cases II

In Grimes v Hawkins (2011) a young lady was invited by her friend, while her parents were away, to a party at her house. During the course of the party, the plaintiff used the swimming pool in the house. The plaintiff had used the pool before and was familiar with its depths. The plaintiff then decided to dive into the pool and because the depths of the pool were not sufficient the plaintiff’s head hit the bottom of the pool and as a result she suffered severe injuries to the spine. The plaintiff sued.
The court found for the defendant on the basis that the plaintiff had used the pool on previous occasions and was entirely familiar with its depths. Regardless of the fact that the plaintiff was a visitor that was invited, the question that was to be asked, in line with the dictum in the Calgarth 1927 was whether the pool was used for the purpose that it was intended? When someone is invited to use the facilities in the house, the invitation is extended on the basis that the facilities i…

Tort - Occupiers Liability Cases I

In Edward v Railway Executive (1952) the case was decided prior to the enactment of the Occupiers Liability Act 1957; a railway track was used by members of the public to cut across, as a short cut, and the council erected fences to prevent the use of the railway track as a short cut but the fences were repeatedly torn down and the matter was eventually brought before the court. The question that was to be decided upon was whether the council despite repeatedly erecting fences owed those who used the railway track as a short cut a duty of care? The court held that when there are repeated attempts to erect fences to prohibit members of the public from using the railway track as a short cut and those fences are repeatedly torn down, a duty of care did not arise.
In Wheat v Lacon (1966) the plaintiff and her family were staying in a hotel and while her husband was climbing down a particularly steep staircase, he fell down and hit his head on a beam and died as a result. During the trial, …

Tort - Occupiers Liability II

Lowery v Walker (1911) gives us an example of the type of duty that is owed to strangers and stranglers that make their way onto private poverty. The plaintiff used the defendant’s land as a short cut, the land was usually used as a short cut, and the defendant had taken no steps to prevent it from being used as such. The plaintiff while walking across the land was injured by the defendant’s horse. The defendant knew that the horse was dangerous but despite that had not taken any steps or measures to restrain the horse or have it secured. The plaintiff sued and was successful.
The situation is not too dissimilar to those who have guard dogs like Rottweilers and German Shepherds. Without doubt, these are some of the most loving dogs in the world but they have a tendency to be over protective and are best kept on land that is not open to public. Most owners of these dogs usually post signs to warn friends, visitors, strangers, and stranglers that there is a dog or dogs in the vicinity to…

Tort - Occupiers Liability I

Occupiers liability refers to the duty that is owed by those who occupy property through ownership or lease to visitors to their land or property. Despite the fact that owners legally own the land they must take adequate, relevant and appropriate steps to ensure that any visitor to their property, whether invited or otherwise, is not subjected to the risk of accident, injury or illness.
In Jolley v Sutton LBC (1998), for example, the council had left an abandoned boat on a piece of land that it owned with a notice stuck to it that warned others not to meddle with the boat and if the boat was unclaimed within 7 days it would be removed. The boat however was left abandoned for 2 years and in that time it had further deteriorated and posed a hazard to trespassers or anyone else who clambered on it or fiddled with it.
The boat was discovered by two 14-year-old boys who as boys normally do got carried away with it and tried to do it up. While they were trying to fix the boat, there was an ac…