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 therefore the college did not owe a duty to warn anyone entering the room that there were stacked chairs.

In Darby v National Trust (2001) the plaintiff’s husband drowned in a pond owned by the defendants. The defendants owned 5 ponds in total. 2 of the ponds were used for fishing and the council had taken steps to prevent or discourage visitors from swimming or paddling in the other 2 ponds. With regards to the pond the plaintiff’s husband drowned in, which was relatively shallow, the defendants hadn’t taken any steps or measures to prevent visitors from swimming or paddling in the pond.

The plaintiff’s husband was familiar with the pond and had used it many times before. On this occasion, the plaintiff’s husband swam to the middle of the pond while playing a game and subsequently drowned. The plaintiff brought an action against the defendants claiming that the council had not taken adequate steps to prevent others from using the pond and that the council had failed to warn visitors of the dangers in using the pond.

The court held that the council did not owe the plaintiff a duty. Swimming in a pond was dangerous given the fact that the sand below can give way at any time and most swimmers are aware of the dangers of swimming in a pond. The council was not under a duty to warn the plaintiff of something that was fairly obvious and of something that most people would know about.

In Fairchild v Glenhaven Funeral Services (2001) the plaintiffs were independent contracts who were exposed to asbestos dust during the course of their employment and as a result contracted mesothelioma, a cancer of the mesothelial tissue, which is commonly caused by exposure to asbestos. The plaintiffs sued.

The court in line with the decisions in Margereson & Hancock v JW Roberts Ltd (1996) and Holtby v Brigham & Cowan (2000) held that the defendants were liable but the damages were reduced and the court took into account the numerous times the plaintiffs had willingly exposed themselves to asbestos dust, in accordance with the Law Reform (Contributory Negligence) Act 1945.

In Eden v West & Co (2002) the plaintiff was a carpenter and while he was working bricks from a structure collapsed on him and the plaintiff was injured as a result. The plaintiff in this instance had an implied license to be on the premises and the defendants were held to be liable. When a visitor enters a premises to perform a duty, implied by law or otherwise, it is on the grounds that it would be safe for him or her to do so.

In Donoghue v Folkstone Properties (2003) we examine the duty that arises under s.(1)(3) of the Occupiers Liability Act 1984. The plaintiff decided to go for a swim and dived off a slipway belonging to the defendant and hit his head on an obstruction below the water and thereby sustained serious injuries. The plaintiff who was an expert swimmer and diver sued.

The court decided that in order to determine if a duty existed under s.(1)(3) of the Occupiers Liability Act 1984 they had to look at the circumstances of the alleged breach. The plaintiff decided to go for a swim in the odd hours of the night, when it was dark, on boxing day i.e. in the middle of winter. If it was summer and during the day then we can say with some degree of certainty, that the defendant should have foreseen or anticipated the risk. However, it is unreasonable to expect that the defendants could anticipate that someone would go for a swim in the middle of winter and close to midnight, at that. The defendants were held not to be liable. A duty will only be imposed on a defendant with regards to a trespasser under s1(3) of the Occupiers Liability Act 1984 when it is reasonable to do so.

Copyright © 2019 by Dyarne Ward


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