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 prevent them from coming too close to the fence - these
dogs are normally kept in an enclosed area.
On
the same token strangers, stranglers, visitors, and trespassers also have a
duty to ensure that they act in the appropriate manner. For example, if there
is a sign posted on the fence saying “beware of dog” please do not try and put
your hand on the fence or meddle with the fence because the chances are that
you will get bitten. Owners train these dogs to react in the manner that they
do for their own safety and protection.
There
are also instances and occasions where people tend to aggravate the dog and if
you do so and get your hand bitten off don’t blame the owner because no one in
their right mind would aggravate a Rottweiler or a German Shepherd especially
when there are signs posted all around that clearly say “beware of dog”.
Strangely
enough there are some people who can’t walk past compounds that are protected
by dogs without aggravating the animal and after that make a complain to the
relevant authorities saying that the dog is too vicious. Vicious or otherwise
in most instances the dog is just doing what it is trained to do.
The
court elaborated on the duty that is owed by strangers, stranglers,
trespassers, and visitors in the Calgarth 1927 – when a person is invited into
a house to use the staircase they are not invited to slide down the banister.
They are invited to use the staircase in the manner that it is normally used
i.e. the duty that is owed by any occupier of land is one that is within
reason.
In
Haseldine v C. A. Daw & Son and Others (1941) the plaintiff was injured
when the cylinder gland of a hydraulic lift in a block of flats broke. The lift
was examined only the previous day by someone from the company that was
contracted to maintain it and the lift was passed fit. The plaintiff sued the
owner of the flats who was also the occupier and the courts held that the owner
was not liable. In this instance, the maintenance of the lift was contracted to
another company that was required to inspect the lift once a month. The
accident was not caused by the negligence of the owner or the occupier but
rather by the lack of skill exercised by the servicemen that were contracted to
ensure that the lifts were in good working order.
In
Tomlinson v Congleton B.C. (2004) the defendants had converted a sand quarry
into a park that was open to visitors to frequent. The disused quarry included
a lake and signs were posted in plain sight disallowing or prohibiting visitors
from swimming in the lake, especially because these lakes are normally shallow
and the sand below is loose and prone to give way, which is normally the case
with pools that occur naturally in disused mines and quarries and these pools
are a hazard to swimmers. Despite that some of the visitors did go for a swim
or a wade in the shallow waters of the lake.
The
plaintiff was a visitor who decided to go for a swim. He dived into the pool
but because of the shallowness of the water or the lack of depth, he sustained
severe injuries to the neck. The plaintiff sued.
The
court held that the council was not liable. The risk was one that was
perpetuated by the claimants own actions rather that a failure by the council
to take reasonable care and precaution. S2(2) Occupiers Liability Act 1957 –
“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”.
Copyright
© 2019 by Dyarne Ward
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