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 of the law, in respect to climbing up and down a staircase,
will exercise due care and caution in doing so but the same however cannot be
said for children. Whatever adults decide there is a very high probability that
children will do the exact opposite.
In
White v The Council of the City and District of St. Albans (1990) the plaintiff
had taken a short-cut across the defendant’s fenced-off property and while he
was doing so he fell into a trench and as a result sustained injuries. The
plaintiff sued on the grounds that the fact that the defendant had erected a
fence around his property meant that he was aware that the property was being
used as a short-cut and that there were others who used the property and thus
the defendant had to take reasonable care and caution to ensure that no harm
should befall anyone who used his property, as per s.(1)(3)(b) of the Occupiers
Liability Act 1984.
The
court however found in favor of the defendant and rejected the plaintiff’s
argument and decided that just because a person erects a fence across his
property does not mean he or she is aware that there were others who were using
the property.
Farmers,
including sheep and cattle farmers, would be the most common example of people
who fence-off their property because they don’t want any harm to befall the
animals and they do not want the animals to get in the way of traffic. If the
animals got on a road they could cause a very serious accident.
Likewise,
dog owners, also, normally fence off their property to prevent their dogs from
getting out. Just because a property is fenced off, it doesn’t necessarily mean
or imply that the owner, occupier or the person who has control over the
property is aware that the property is being used as a short-cut.
In
Swain v Natui Ram Puri (1996) a 9-year-old child got on the defendant’s roof
and subsequently fell off and sustained injuries as a result. The matter was
brought before the court and the defendant contended that he did not have any
knowledge that the plaintiff was in the area or had no reasonable grounds to
anticipate that a 9-year-old child could get on his roof.
S.(1)(3)
of the Occupier Liabilities Act 1984 states “An occupier of premises owes a
duty to another (not being his visitor) in respect of any such risk as is
referred to in subsection (1) above if …. S.(1)(3)(b) he knows or has
reasonable grounds to believe that the other is in the vicinity of the danger
concerned or that he may come into the vicinity of the danger (in either case,
whether the other has lawful authority for being in that vicinity or not);
It
is difficult to say with any degree of certainty that a 9-year-old child could
get on top of the defendant’s roof and it is it is difficult to expect the
defendant to anticipate that a child of that age could get on his roof. The
defendant was held to be not liable.
In
Ratcliff v McConnell (1999) the plaintiff who was a student at a college after
a night out decided to go for a swim in the college pool with his friends. At
the time when they arrived at the pool, there was a notice on the closed gates
that informed any would-be user that the pool would be closed from 10 pm to
6.30 pm and the use of the pool during those hours was prohibited.
The
plaintiff and his friends climbed over the gate and made their way to the pool.
There were clear markings that differentiated the shallow end of the pool from
the deep end but because of the poor lighting the plaintiff and his friends
failed to see the markings. The plaintiff subsequently dived into the shallow
end of the pool and sustained serious injuries. The plaintiff sued.
The
court had to once again look at s.(1)(3)(b) to determine if the college owed
the plaintiff a duty of care. The duty that the court had to consider was that
which was owed to a trespasser. The court decided that because there was only
one past accident in the pool and the victim was a visiting college student and
no accident had befallen any student from the college in the past, the
defendants were not liable, or could not be held accountable. It is worth
comparing the decision in Ratcliff v McConnell (1999) with that in Rae v Mars
(UK) Ltd (1990).
Copyright
© 2019 by Dyarne Ward
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