Law of Torts

Law Unit 5 – Law of Torts

If a person has done something wrong in civil law, for example like breaking an agreement or being careless and causing injury to another person or his property, then these wrongs are not punishable by prison sentence, rather they are ‘civil’ wrongs, and aim of civil law is to compensate the victim or to put right the wrong in some other way, this called Law of Torts.

Now I am going to look at Occupiers Liability Act 1957 because the injuries to Nasma and Peter arisen from the state of the premises.

Occupiers liability concerns the liability of an ‘occupier of land’ for the claimant’s injury or loss or damage to the property suffered whilst on the occupier’s premises. Therefore occupiers liability must be distinguish from damage caused by the defendant’s use of his or her land, which the claimant suffers on his or her land.

Occupiers liability is not given a definition under the 1957 act, section 1(1) merely states; ‘in consequence of a person’s occupation or control of premises’.

The test for deciding whether a defendant in fact an ‘occupiers’ is determined by the degree of control arising from their presence or activity on the premises. Wheat v. Lacon (1966) in this case a manager of a pub was given the right to rent out rooms in his private quarters, by the owner. When paying guest fell on the unlit staircase, the HL held that both the manager and his employers could be occupiers under the act. I the event neither had breached their duty, since it was a stranger that had removed the light bulb. The occupation can be multiple occupations this can be seen in Collier v. Anglian Water Authority (1983) where a promenade formed part of the sea defences for which the water authority was responsible. The LA owned the land and was responsible for cleaning the promenade. The claimant was injured because of disrepair, the water authority rather than LA was liable, thought both were occupiers. In the case of John, he is the occupier under the act 1957.

The 1957 act gives a vague definition of what exactly amounts to a ‘premises’, section 1(3) states; ‘fixed or movable structure, including any vessel, vehicle and aircraft’. From this definition I can say that John’s house is amounts to a ‘premises’.

Under section 1(2) of the 1957 act all visitors are owed a common law duty of care, this may include friends making a social call, people invited onto premises for a purpose, i.e. a salesperson to give a quote, people who hold licences to sell products and services, such as landladies or landlord. Sawyer v. Simonds (1966) where a duty was found to exist to pub customers, although on the facts reasonable care had been taken to avoid injury to customers from broken glass. Anyone with permission to be on the premises. But not all visitors need permission, section 2(6) relates to persons entering premises as of a right conferred by law, such as, gas meter readers and police officers. Cunningham v Reading FC (1992) where a football club was liable to police officers injured by lumps of concrete thrown by visiting football fans. On the facts the club knew, from the past experience, that the visiting crowd was likely to contain a violent element who had thrown concrete on previous occasions. The club had made no effort to remove or repair the loose concrete in spite of the relatively low cost in doing so.

Those using a public right of way are generally are not visitors. McGeorwn v. Northern Ireland Housing Executive (1994) the claimant lived in a cul-de-sac owned by the defendant. She was injured on a footpath which had become a public right of way. The injury was due to failure to maintain the footpath; however the HL was reluctant to impose duty because it would be Lord Keith ‘an impossible burden’,

Contrast those using a private right of way: but visitors must prove that the conduct of the occupier created a grant of an implied license. Lowrey v. Walker (1911) certain members of the public used a short cut across the defendant’s land for many years in order to get to the local railway station. While he objected he took no legal precautions to stop it. When he loosened a wild horse on the land, which savaged the claimant, he was found liable. The claimant by the defendant’s conduct had in effect by his conduct granted a license. In the case of John, he owed duty of care to Nasma which is a visitor.

Under OLA 1957 S2 (1) the occupier owes the same duty of care to all visitors as under the ordinary principles of negligence: thus the general rule is that the defendant’s behaviour is tested against the standard of care which could be expected from a reasonable person, Nettleship v. Weston (1971).

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In Bell v. DHSS (1989) in failing to provide premises which were safe for occupiers, the reasonable man would have foreseen that in failing to put into a place a practice of mopping up tea spilt onto the floor that the claimant visitor would suffer harm. Yet the courts expect people to take only reasonable precautions guarding against harm to others, Bolton v. Stone (1951). The defendant therefore expected to safeguard against the foreseeable. Bell v. DHSS (1989) it was reasonably foreseeable that in spilling tea on the office floor a visitor would slip and suffer harm.

If the ...

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If the claimant have any special characteristics or incapacity which increase the risk of harm, the Defendant will be expected to take this into consideration. Paris v Stepney BC (1951) the claimant garage worker was blinded when he was struck in the eye by a steel chipping. At the time of the injury, he had already lost the sight in the other eye from a cataract. The defendant employer argued that the risk of such an injury causing blindness in an ordinary person was so small that it was not required to provide eye protection. The House of Lords held that the risk to an ordinary person was irrelevant; the defendants knew that their employee was blind in one eye, and in such circumstances the `reasonable employer' would have provided eye protection.

It must be established that ‘but for’ the defendant’s state of the premises the claimant would not have suffered injury. Three men attended at the emergency department but the casualty officer, Dr Banerjee, who was himself unwell, did not see them, advising that they should go home and call their own doctors. One of the men died some hours later. The post mortem showed arsenic poisoning which was a rare cause of death. It was held, that on but for test, even if the deceased had been examined and admitted for treatment, there was little or no chance that the only effective antidote would have been administered to him in time. Although the hospital had been negligent in failing to examine the men, there was no proof that that the deceased's death was caused by that negligence.

The occupier must be prepared for children to be less careful than adults and therefore the premises must be reasonably safe for a child of that age, therefore the standard of care is measured subjectively, S2(3) 1957 act. Moloney v. Lambeth LBC (1966) here a four-year-old child fell through a gap in railings guarding a stairwell and was injured. An adult could not have fallen through the gap so such an injury would have been impossible. The occupier was liable. In the case of john, the type of the visitor is a child and therefore the duty of care owed to John, even he should fence off the tree-house. Occupiers should guard against any kind of allurement which places a child visitor at risk of harm. Glasgow Corporation v. Taylor (1922) here a seven-year-old child ate poisonous berries in a botanical gardens and died. The shrub on which the berries grew was not fenced off in any way; the occupier should have expected that a young child might be attracted to the berries and was liable.

Nevertheless the existence of an allurement on its own is not sufficient ground for liability. Liddle v Yorkshire (North Riding) CC (1944) a child was injured jumping off a soil bank while showing off to his friend. The defendant was not liable since the child had been warned away from bank on numerous previous occasions.

The damage resulting from allurement must still be foreseeable, Jolly v London Borough of Sutton (1998) CA and (2000) HL in this case council failed to move an abandoned boat for two years. Children regularly played in the boat and it was clearly a potential danger. When two boys of 14 years jacked the boat up to repair it, the boat fell one, injuring him. In the court of appeal the action for compensation failed, since it was held that, while the boat was an obvious allurement, the course of action taken by boys, and therefore the specific type of damage were not foreseeable. The house of lord reversed this. As Lord Hoffman said; ‘…..the [trial] judge’s board description of the risk as being that children would ‘meddle with the boat at the risk of some physical injury, was the correct one to adopt….’

The courts may relieve the occupier of liability in cases where it is considered, on the facts that young children must be under the supervision of a parent. Phipps v Rochester (1955) a five year old child was injured, having fallen down a trench dug by the defendant where the child frequently played. The defendant was not liable because the court concluded that the parents should have head the child under proper control.

In the case of Nasma v John, John should have fenced off the tree-house as it was reasonably foreseeable that trying to repair or playing with damaged tree-house would cause harm and premises must be reasonably safe for a child as Mary, his daughter and Nasma, his niece both were 12-years-old. Roe v Minister of Health (1954) Roe and another patient underwent surgery in a hospital managed under the general supervision of the Minister of Health. Before entering the operating theatre, an anaesthetic consisting of Nupercaine was administered by means of a lumbar puncture. At that time, it was common practice to store such anaesthetic in glass ampoules immersed in a phenol solution to reduce the risk of infection. Unknown to the staff, the glass had a number of micro-cracks which were invisible to the eye but which allowed the phenol to penetrate. When used, the phenol-contaminated anaesthetic caused permanent paraplegia. Denning LJ said, “We must not look at the 1947 incident with 1954 spectacles.” It was held that the micro-cracks were not foreseeable given the prevailing scientific knowledge of the time. Thus, since no reasonable anaesthetist would have stored the anaesthetic differently, it was inappropriate to hold the hospital management liable for failing to take precautions.

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 John told his children not to play in it but Nasma is a child so this is not sufficient so john 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. John 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. Nasma, who is a child, was not aware of the risk and cannot willingly accept it. John therefore cannot avoid her duty of care by using this defence. Thus Nasma would be able to commence legal proceedings against John under the tort of occupier’s liability for the injuries he has sustained.

Now I am going to look at Peter’s right and remedies against John in connection with the injuries that Peter suffered. Peter, who is 9-years-old boy was not invited by John so he was not a visitors, he was a trespasser.

Now I am going to look at Occupiers Liability act 1984. The 1984 act is concerned with a duty of an occupier to ‘persons other than his visitors’. The terms occupier and premises, have the same meanings as for the purpose of the 1957 act which I have already explained.

The 1984 act applies to 3 categories of entrants; trespassers, persons who enter land in the exercise rights conferred by the National Parks and Access to the countryside Act 1949, and person lawfully exercising a private right of way.

The occupier will only owe a duty of care under s1 (3) OLA 1984 where all 3 requirements are met.

Firstly, defendant is aware of danger or has reasonable grounds to believe that it exists. Rhind v Astbury (2004) in this case the claimant accepted that he was a trespasser when he dived into shallow water to retrieve a football, but argued that his injury was caused by a fibre glass container on the bed of the lake which constituted a danger. Held; the defendant was not liable, since the defendant was unaware of the container and had no reasonable grounds for suspecting that the danger existed. In the case of Peter v John, John was aware of danger which can cause harm to trespasser or visitor.

Defendant knows or believes the other (trespasser) is in the vicinity of danger. Donoghue v Folkestone (2003) in this case the claimant was injured when he was trespassing on a slipway in a harbour and dived into the sea. The injury happened in the middle of winter, at around midnight. Held; the occupier did not owe duty of care. A reasonable occupier would not expect that a trespasser might be present or engage in such a foolhardy exercise. In the case of Peter v John, John believes the trespasser is in the vicinity of the danger.

The risk is one against which he may reasonably be expected to offer some protection. The mere fact that defendant has taken precautions or fenced the premises is not proof that the occupier knew or ought to have known of the existence of the danger. White v ST Albans City Council (1990) the claimant had taken an unauthorised short cut over the council’s land. He fell from a narrow bridge that had been fenced. Held; the court did not feel that this was sufficient to make the council liable.

In the case of Peter v John, John was aware of danger and he was also aware of Peter’s mischievous behaviour and so would be aware that anyone trespassing would be in the vicinity of danger and clearly the potential risk is such that John would be reasonably expected to offer some protection. The tree-house is an allurement and John should have expected that a young child might be attracted to the tree-house and he should have fenced off the area around the tree-house. John has not taken any precautions to prevent the injury from damaged tree-house meaning John has breached his duty of care towards Peter.

Trespasser can be adult or a child. Now I am going to look at adult trespasser. The standard of care is objective. Nevertheless the greater the degree of risk the more precautions the occupier will have to take. Tomlinson v Congleton BC (2003) the LA owned a park including a lake. Warning signs were posted prohibiting swimming and diving because the water was dangerous, but the council knew that these generally ignored. The council decided to make the lake inaccessible to the public but delayed start on the work because of lack of fund. The claimant aged 18, dived into the lake, struck his head and suffered paralysis, as a result a severe spin injury. He claimed under the 1984 act succeeded.

All 3 aspects of S1 (3) were satisfied. The CA held that the gravity of the risk of injury, the frequency with which people were exposed to the risk, and the fact that the lake acted as an allurement all meant that the scheme to make the lake inaccessible should have been completed with some urgency. The trial judge had reduced damages by tow-thirds because of the contributory negligence of the claimant. The HL held, however, accepted the council’s appeal for three reasons. The danger was not due to the state of the defendant’s premises. It was not sort of risk that the defendant should have to guard against, but one that the trespasser chose to run. The council would not have breached its duty even with a lawful visitor as the practicality and cost of avoiding the danger was not reasonable to expect of the occupier.

The age of the trespasser should be taken into account. Thus when the defendant is a child, the standard of care is that of an ordinary and reasonable child of the same age. Mullin v Richards (1998) in this case the defendant and claimant were 15 years-old school girls. They were fencing with plastic rulers during a lesson, when one of the rulers snapped and a piece of plastic flew into the claimant’s eye, causing her loose all useful sight in it. The CA held that the correct test was whether 15 years-old would have foreseen that the game carried a risk of injury. On the facts the practice was common and was not banned from school, and the girls had never been warned that it could be dangerous, so the injury was not foreseeable. On the case of Peter v John, it was reasonably foreseeable that playing with damaged tree-house would cause injury.

Finally we must identify whether John can avoid his 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 Peter is a child the normal warnings would not be sufficient so just roping off the area around tree-house is not sufficient. He 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 Peter is not aware of the risk and so cannot willingly accept the risk making this defence unsuccessful. Peter would therefore be able to take legal action against John under the tort of occupier’s liability for his injuries.

Now I am going to look at rights and remedies available to John in connection with the apparent damage to his land from the chemical.

This rule in Rylands v Fletcher originated in the tort of nuisance in the nineteenth century during the industrial revolution. It was based on the principle that if a person purchased land or put his land to use for industrial purposes, and as a result damage was caused to a neighbours land, then the cost of that damage would be borne by the industrialist, without the need for the claimant to prove fault. The essence of the rule is that it is a form of strict liability for the escape of ‘things’ likely to cause damage, that have been brought onto land. Probably the best example of the rule functioning is in Rylands v Fletcher itself. The defendant, a mill owner, employed an independent contractor to build a reservoir on his land, the contractor failed to block disused mine shafts that he had come across on the site. When the reservoir was filled, the water escaped down the shafts and flooded the plaintiffs adjoining mine, causing damage estimated at almost £1000. D had not been negligent because he could not have known about the shafts nor could he have been held vicariously liable for the contractors. An action in trespass was not available because the damage was not direct and immediate, and action in the tort of nuisance was also unavailable because at the time of the case it could not be applied to an isolated escape. Nevertheless, D was held liable in tort, in the Court of Exchequer Chamber and this decision was upheld in the House of Lords. The judges did not regard their decision in this case as a new form of liability in tort; the justification for this rule was explained by Blackburn J in the Court of Exchequer Chamber by quoting previous cases in nuisance as authorities. These authorities however did not appear to go as far as the decision in Rylands and “as developed by the courts in subsequent decisions, was wider and quite different in kind to any that preceded it.” In delivering the judgement of the Court of Exchequer Chamber, Blackburn J said that the “rule applied only to a thing which was not naturally there.” Lord Cairns in the House of Lords added the condition that the defendant must have put his land to “a non-natural use” It is this concept of non-natural use that has created much confusion, and the courts have over the years redefined this concept on a number of occasions, adding conditions and restrictions to its application.

The rule does not apply to things that occur naturally on the land, the thing must have been brought on to, or accumulated on the land. In the event of the escape of water that is naturally upon the land D will not be liable if there is an escape that causes damage because D is not responsible for the accumulation or its creation, there must exist the fact that it has been “artificially accumulated” by D. Similarly, the escape of rocks that are naturally on the land would not amount to an accumulation, however if the escape of the rocks is the result of blasting in a quarry, as was the facts in Miles v Forest Rock Granite Co. (Leicestershire) Ltd, liability may be imposed for the accumulation of the explosives. Therefore, even if the thing that escapes is not the thing that has been accumulated, liability can still be imposed. Although, this rule in Rylands is said to be a principle of strict liability the common law has developed a number of defences that have moved towards introducing the elements of fault. The occupier of the land is liable for damage caused by an escape subject to the defences of common benefit,[10] act of a stranger, statutory authority, consent of the claimant, default of the claimant or an act of God.