· Simms v Leigh RFC [1969] 2 All ER 923 - P injured by hitting concrete wall surrounding rugby field. D not liable as injury foreseeable but so improbable that it was not necessary to guard against it. D also accepted risk of playing on field complying with bye-laws.
There can be expresses or implied permission i.e. restaurants, people with legal rights of access i.e. public officials and to rescuers). In the case of Simon I would consider whether if he was lawful or not as you could say he had implied consent from Karen as he repeatedly went into the music room with her consenting to be on his own as she trusted him. This may also take into the next part of the act as the duty may be restricted to parts of the premises, certain activities or at certain time. As the Calgarth said “if you invite someone in to use your stairs, you don’t invite them to slide down the banister” He was invited into the room and into the cupboard but at this point in time he was not so this could be seen being unlawful.
Also the same duty of care to all visitors may be restricted or extended in certain cases. The occupier must take reasonable care to ensure that a visitors are reasonable safe, Cunningham v Reading FC [1991] Times LR 153 - D liable to police injured by concrete loosened from terraces. D neglected to take precautions against clearly foreseeable acts of violent supporters. Karen knew the guitar was faulty and dangers but no extension on her care was taking in these circumstances. As well as knowing of the situation, extra care must be taken for children as the occupier must be prepared for children to be less careful than adults. Therefore, if an occupier admits children to the premises the child visitor must be reasonably safe. They must also allow that certain dangers (such as a music room) attract children, these are known as allurements. In Jolley v Sutton LBC [2000] 3 All ER 409 - D liable to boy injured repairing boat abandoned on council land. D knew of boat and that it was a danger but took no reasonable care of making the area safe.
Glasgow Corp v Taylor [1922] 1 AC 44 - 7 year old died after eating poisonous berries in park. D knew of the berries but took no precautions against children. This is an example of allurements towards children just like what the music room and the guitar is like to Simon as the guitar was his favourite.
On the bases of this I would say it’s a fine line between whether Simon is looked upon as a lawful or unlawful visitor mainly down to his entrance whether he had implied permission as he had it all the other times but now there was a new danger and she told him not to go into the cupboard. Was he lawful up until he opened the cupboard? If so, the Occupier’s liability act 1984 will see if Simon had a duty as an unlawful visitor.
Occupier’s liability act 1957 establishes a duty of care towards unlawful visitors in certain circumstances. For Simon he may be seen as unlawful for the time he entered the premises or for when he opened the cupboard. This act is not automatic like the duty under OLA 1957 as to see whether you would apply you have to prove the Duty of care, looking at where there a duty of care and did the defendant fulfil the duty. First off to prove the duty of care you have to see if the occupier:
- is aware of the danger or has reasonable grounds to believe that it exists;
- the occupier 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;
- the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.
In the case of Simon, Karen knew of the risk as she told him not to go into the room and she knows regularly that Simon goes into the room without her and he has access at any time of the day so yes she knows of the danger and knows some is in the vicinity and capable of coming into contact with it. Knowing this she still did not take any proper precautions which she should of and it would have been responsible for her to do so as all she had to do was put a padlock on the cupboard.
Once this has been proving the courts will look out whether the occupier fulfilled the duty of care. This can often be fulfilled by a warning notice which is clear, visual, audio-able and coherent. If not the courts will look at:
- gravity of injury- very likely to happen I the circumstances
- Forseeablility of trespasser- very likely as knew he comes round
- Nature if trespasser- innocent just wanted to play guitar
- Age of trespasser- is considered as a child so extra care
- Nature of premises- music room
- Nature of danger-
- Extent of risk- personal injury
- Cost/practicality of precaution- could easily put a warning notice up or lock the room or just put a pad lock on the cupboard
- Presence of allurements- the guitar and to be able to come over and see Karen
In the case of Simon there was no warning notice or no efforts to stop him from getting to the faulty guitar apart from. So I would say she did not fulfil her duty towards Simon.
Now Simon had passed the 1984 act, the courts would consider any defences available and the ones available are warning notices-there was known, violenti- where you know of the circumstances but still go a head with it as in Ratcliff v McConnell, Ors and Harper Adams College [1999] 1 WLR 670 - P dived into shallow end of open-air swimming pool at night, after drinking. The risk of diving into shallow water was obvious to any adult therefore no duty of care to protect the P. In this case it was an adult and Simon is a child. Karen told not to go into the music room but as a child that would be more of an allurement so that would not suffice.
Overall Simon would pass under 1984 act but I would consider contributory negligence as he was told to get permission before entering which he did not. There was no warning notices or effort to stop Simon getting into the music room as she knew he goes into the room frequently.
