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 situations where they are likely to incur or sustain some form
of injury especially during play.
It
was foreseeable that other children would also use the castle and while they
were playing, it was likely that some injury might befall the children if the
parents did not take proper care and caution. The plaintiff was unsuccessful.
In
Mann v Northern Electric Distribution (2010) the plaintiff a 15 year old boy
suffered severe burns and sustained serious injuries when he climbed a fence
around a electricity substation to retrieve a football.
The
court once again had to decide on the duty that is owed to a trespasser as per
s(1)(3)(b) of the Occupiers Liability Act 1984 and as we have seen thus far
there are two elements that a trespasser has to satisfy before he or she can be
successful in a claim.
The
first question that is to be asked is, is it reasonable to impose a duty on the
occupier under the circumstance? and this then leads us to the next question,
in that, could the defendant have anticipated the actions of the trespasser?
Accordingly,
the court held that it was not reasonable to impose a duty on the defendants under
the circumstances and the defendants could not have anticipated the risk or the
injury that followed when the plaintiff undertook the risk.
In
Harvey v Plymouth County Council (2010) the plaintiff, aged 21, who was drunk
at the time crashed into a fence and fell down a slope and as a result
sustained serious injuries.
The
property belonged to the council and despite fencing the area close to the edge
of the slope off, it had neglected to maintain the fence and as a result the
fencing had deteriorated. The grounds were frequently used for recreational
purposes and there was an implied license that allowed visitors to use it for
recreational activities.
S2(2)
of the Occupiers Liability Act 1957 defines the scope of this license. “The
common duty of care is a duty to take such care as in all the circumstances 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”. The plaintiff sued.
The
court held that the defendants were not liable. The duty to visitors existed
only in so far as the land or the property was used in the manner which it was
intended i.e. in this instance for recreational purposes and since the land or
the property in question was not used for the purposes that it was intended
therefore no duty existed.
In
McCarrick v Park Resorts (2012) the plaintiff dived into a swimming pool but
because of insufficient depth sustained serious injuries and subsequently
became a tetraplegic. The plaintiff sued. The plaintiff’s argument was that
there were no visible signs posted that warned him of the dangers of diving in
the pool or that indicated that the pool or the area of the pool that he was
diving in was shallow.
The
court found in favor of the plaintiff and decided that signs that were posted
to warn visitors of any dangers should be done so in a manner that was plainly
and clearly visible. To do otherwise would defeat the purpose. The court
however reduced the damages that the plaintiff received by one third because it
found that the claimant was contributorily negligent.
Copyright
© 2019 by Dyarne Ward
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