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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