Question Two
Phil may be able to take action under the tort of occupier’s liability. Occupier’s liability concerns the liability of an occupier of premises for the injury or loss, or damage to property suffered by a claimant while on the occupier’s premises. Occupier’s liability can be found in two statutes, the Occupiers Liability Act 1957, (OLA 1957), and the Occupiers Liability Act 1984, (OLA 1984), therefore we must first identify which statute applies in relation to Phil. The OLA 1957 is concerned with the duty of care owed to lawful visitors, whereas the OLA 1984 is concerned with the duty of care owed towards unlawful visitors. Phil has been invited by Mary onto her land and, following section 1(2) OLA 1957, would be regarded as an invitee thereby making him a lawful visitor meaning the OLA 1957 will apply. Next we must identify whether Mary was the occupier of the land when Phil was injured. Following Wheat v E Lacon & Co Ltd an occupier is someone who has control over the premises. The test for identifying an occupier is whether they have a certain degree of control over the premises to be expected to take responsibility for it, which puts them under a duty of care towards those who come lawfully onto the premises. There is no need for a proprietary interest or possession of the land, all that is required is sufficient control of the premises at the time the injury occurred. Mary has sole control over her garden making her the occupier. Now we must identify whether Mary’s garden would be regarded as premises. Under section 1(3) OLA 1957, premises is any fixed or moveable structure which clearly includes Mary’s garden. Next we must establish whether Mary owed Phil a duty of care. Under section 2(1) OLA 1957, ‘an occupier of premises owes a common duty of care to all his visitors’. This common duty, as outlined in section 2(2) OLA 1957, is ‘a duty to take such care as is reasonable to see that the visitor will be reasonably safe using the premises for the purpose for which he is permitted to be there’. Therefore Mary should have made Phil reasonably safe while on her premises, obviously she has not as Phil has broken his ankle. This duty of care only extends to risks which are reasonably foreseeable. A risk of injury to Phil would have been reasonably foreseeable; Phil was there to take photographs which require movement on his part making it foreseeable that Phil could injure himself on a pond full of rubble and not clearly visible due to overgrown weeds. This duty only applies if the visitor is using the premises for the purpose for which they have been invited, this coming from Tomlinson v Congleton District Council. Here the purpose of Phil’s visit was to take photographs which is what he was doing when the injury occurred. It is clear therefore that Mary owed Phil a duty of care. Mary may argue under section 2(3)(b) OLA 1957, that she does not owe a duty of care as Phil was exercising his calling and should have guarded against potential risks of injuring himself. Phil would have been aware that he would have to move around the garden to take photographs and should have taken more care. However this defence would only be sufficient if the normal safeguards associated with the job would have been sufficient to avert the loss or injury this comes from Salmon v Seafarers Restaurant Ltd. Here the normal safeguards associated with photography would not have been sufficient to prevent the injuries Phil has sustained as the pond was concealed. It is clear Mary has breached her duty of care and failed to keep Phil safe for the purpose of his visit as Phil has broken his ankle. Finally we must identify whether Mary can avoid her duty of care. This could be achieved in 3 ways, firstly warnings. This is any kind of notice given by the occupier to inform the visitor of the danger, enabling them to take reasonable care for their own safety, this coming from section 2(4)(a) OLA 1957. However Mary has not given any warning about the pond meaning she could not use this defence. Secondly, section 2(1) OLA 1957 states ‘an occupier can extend, restrict, modify or exclude his duty of care to any visitor by agreement or otherwise’. This means a duty of care can be excluded by means of a contract term or by a notice communicated to the visitor. Mary has not ‘by agreement or otherwise’ excluded her liability for injuries or damage and so could not use this defence. Finally consent which is also known as Volenti non fit injuria. This can be found in section 2(5) OLA 1957 and means that where the claimant knew of the risk but took it anyway, there can be no liability on the occupiers’ behalf. This will only apply if the risk is fully understood and accepted by the visitor. This comes from White v Blackmore and Simms v Leigh RFC Ltd. Phil is not aware of the risk and cannot willingly accept it. Mary therefore cannot avoid her duty of care by using this defence. Thus Phil would be able to commence legal proceedings against Mary under the tort of occupier’s liability for the injuries he has sustained.
Question three
Bobby may be able to take action under the tort of occupier’s liability for his injuries. Occupier’s liability concerns the liability of an occupier of premises for any injury, loss or damage to property suffered by the claimant while on the occupier’s premises. Occupier’s liability can be found in two statutes, the Occupiers liability Act 1957, (OLA 1957), and the Occupier’s Liability Act 1984, (OLA 1984), therefore we must first establish which act will apply in relation to Bobby. The OLA 1957 is concerned with the duty of care owed to lawful visitors whereas the OLA 1984 is concerned with the duty of care owed to unlawful visitors. As Bobby has not been invited onto the land he is as an unlawful visitor meaning the OLA 1984 will apply. Next we must identify whether Mary was the occupier of premises when the injury occurred. As already established and following the case of Wheat v E Lacon & Co Ltd Mary would be regarded as the occupier of her garden which would also be regarded as premises. The next task is to establish whether Mary owes Bobby a duty of care. Under section 1(1)(a) OLA 1984 a duty of care applies in relation to injuries sustained on the premises by reason of any danger due to the state of the premises or things done or omitted to be done on them. Bobby’s injuries have occurred due to the state of the premises; nail traps were concealed in the garden therefore putting Mary under a duty of care. However a duty of care will only apply if three criteria are fulfilled. Under section 1(3) OLA 1984, the occupier must be aware of the danger or have reasonable grounds to believe it exists; they must know or have reasonable grounds to believe the trespasser is in the vicinity of the danger and the risk of danger should be one which the occupier may reasonably be expected to offer some protection. Mary is aware of the danger as she concealed the nail traps in the lawn. She was also aware Bobby has previously entered her premises unlawfully and so would be aware that anyone trespassing would be in the vicinity of danger and clearly the potential risk is such that Mary would be reasonably expected to offer some protection. Under section 1(4) OLA 1984 the duty is to take such care as is reasonable to prevent injury to the non visitor by reason of the danger concerned. Mary has not taken any precautions to prevent the injury from the nail traps meaning Mary has breached her duty of care towards Bobby. This can be illustrated in Tomlinson v Congleton Borough Council. Finally we must identify whether Mary can avoid her liability. There are two ways to do this, warnings and consent or volenti non fir injuria. Firstly under section 1(5) OLA 1984, an occupier may avoid liability by taking steps that are reasonable to make the unlawful visitor aware of the danger. This may be achieved by the use of warnings discouraging people to enter. However this could only be used in relation to adult trespassers, with a child more warnings are required. As Bobby is a child the normal warnings would not be sufficient. However Mary has not given any warnings meaning she would not be able to avoid liability with this defence. The second defence of consent also known as volenti non fit injuria which, under section 1(6) OLA 1984, means no duty is owed to anyone to risks willingly accepted by that person. The claimant must appreciate the nature and degree of the risk not merely be aware of its existence. This can be illustrated by Ratcliffe v McConnell. However Bobby is not aware of the risk and so cannot willingly accept the risk making this defence unsuccessful. Bobby would therefore be able to take legal action against Mary under the tort of occupier’s liability for his injuries.
Bibliography
Cook, J. Law of Tort 7th Pearson Longman 2005
Turner, C & Hodge, S. Unlocking Torts Hodder and Stoughton 2006
Other sources of information
h0Lecture.htm
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 379
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 379
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 379
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 380
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 380
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 384
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 384
Cooke, J. (2005) Law of Tort 7th Pearson Longman pp 384
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 386
Defamation Act 1952 Elizabeth II HMSO
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 377
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 377 - 378
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 234
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 234
Occupiers Liability Act 1957 Elizabeth II HMSO
Occupiers Liability Act 1984 Elizabeth II HMSO
Occupiers Liability Act 1957 Elizabeth II HMSO
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 234
Occupiers Liability Act 1984 Elizabeth II HMSO
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 234
Occupiers Liability Act 1957 Elizabeth II HMSO section 1(2)
Occupiers Liability Act 1957 Elizabeth II HMSO
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 236
Cooke, J. (2005) Law of Tort 7th Pearson Longman pp 203
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 237
Occupiers Liability Act 1957 Elizabeth II HMSO section 1(3)
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 237
Occupiers Liability Act 1957 Elizabeth II HMSO section 2(1)
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 240
Occupiers Liability Act 1957 Elizabeth II HMSO section 2(2)
Cooke, J. (2005) Law of Tort 7th Pearson Longman pp 208
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 241
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 240
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 241
Occupiers Liability Act 1957 Elizabeth II HMSO section 2(3)(B)
Cooke, J. (2005) Law of Tort 7th Pearson Longman pp 211
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 244
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 254
Cooke, J. (2005) Law of Tort 7th Pearson Longman pp 213
Occupiers Liability Act 1957 Elizabeth II HMSO section 2(4)(a)
Occupiers Liability Act 1957 Elizabeth II HMSO section 2(1)
Cooke, J. (2005) Law of Tort 7th Pearson Longman pp 214
Cooke, J. (2005) Law of Tort 7th Pearson Longman pp 214
Cooke, J. (2005) Law of Tort 7th Pearson Longman pp 213
Occupiers Liability Act 1957 Elizabeth II HMSO section 2(5)
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 252
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 252
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 234
Occupiers Liability Act 1957 Elizabeth II HMSO
Occupiers Liability Act 1984 Elizabeth II HMSO
Occupiers Liability Act 1957 Elizabeth II HMSO
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 234
Occupiers Liability Act 1984 Elizabeth II HMSO
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 234
Occupiers Liability Act 1984 Elizabeth II HMSO
Occupiers Liability Act 1984 Elizabeth II HMSO section 1(1)(a)
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 257
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 257
Occupiers Liability Act 1984 Elizabeth II HMSO section 1(3)
Cooke, J. (2005) Law of Tort 7th Pearson Longman pp 216
Occupiers Liability Act 1984 Elizabeth II HMSO section 1(4)
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 258
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 259
Occupiers Liability Act 1984 Elizabeth II HMSO section 1(5)
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 259
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 259
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 259
Cooke, J. (2005) Law of Tort 7th Pearson Longman pp 222
Occupiers Liability Act 1984 Elizabeth II HMSO section 1(6)
Cooke, J. (2005) Law of Tort 7th Pearson Longman pp 222
Turner, C & Hodge, S. (2006) Unlocking Torts Hodder and Stoughton pp 260