As Pierre cuts his arm badly on the sharp edge of the metal sheet on the Mad Maxx ride, he is said to have incurred physical injury and hence is a primary victim following rules of White v Chief Constable of South Yorkshire Police.
In the case of Luc, a 7 year old runs off and goes through a gate next to the Raging Rapids log flume ride and is injured by the machinery that operates the ride. An occupier must be prepared for children to be less careful than adults. If the occupier allows children to enter the premise the premise must be reasonably safe for a child of that age. Fawlty Towers World of Adventure is a premise that one could reasonably expect children to be present. In the case of Perry v Butlin Holiday World, the occupiers should be more aware of children’s behaviour and take extra precautions to protect children from harm.
In this case, Luc is a trespasser. Hence he is protected under the OLA 1984 which sets out the duties which occupiers have towards people who come on to their land without permission. It provides that there is a duty to take such care as is reasonable in the circumstances to see that they do not suffer injury on the premise by reason of any danger due to the state of the premise or to the things done or omitted to be done by them.
This is illustrated in the case of Keown v Coventry Healthcare NHS Trust. The claimant had been 11 years old at the time of the accident which gave rise to the case. He was climbing on an external fire escape, attached to a building at one of the Trust hospitals when he fell hitting his head and suffered brain damage, The Trust was liable but reduced the damages by two thirds for contributory negligence. The duty to trespassers only exists when the occupier is aware of the danger or has reasonable hrounds to believe that the trespasser us the vicinity of the danger The sish is one which in all circumstances of the case, the occupier may reasonable be expected to offer the other some protection from it.
The standard of care applicable to a child is by taking into account the ordinary behaviour expected of a child of the same age. In this case, the court has to decide whether a 7 year old child would be reasonably expected to understand the warning signs? For example in the case of Clare and Perry, the visitor had injured herself climbing down a wall that ran on to the edge of the hotel. The courts held that it was not an action that could be reasonably expected of a visitor and it was hence unexpected and foolish.
Fawlty may have argues that they have discharged their duty under the Act by means of a warning notice prominently displayed at the entrance to the ride s.2.4 provides that a warnin on its own is insufficient to discharge that duty unless in all circumstances of the case it is sufficient to enable the visitor to be reasonably safe. In Roles and Nathan, two industrial chemist have been warned by an engineer that they should not work on certain boiler fuels if the fire in the boiler is lit. They ignored the warnings and inhaled carbon monoxide as a result. The court of Appeal held that the warning was sufficient to discharge the occupier of the duty of care. Here the warning does not provide any guidance as to how the user of the ride could be safe and the warning is insufficient to discharge the duty (It might be otherwise if the warning had told passengers not to hold sit on the dysfunctional metal seat)
An alternative defence is the defence of contributory negligence is available by the virtue of s.2(3) which provides that circumstances relevant to the discharge of the duty of care and the want of care which would ordinarily be looked for in such a.
As to Luc, it is a moot point whether or not the risk arises rom danger due to the state of the premises, and the analysis of Tomlinson v Congleton would be equally applicable here but it would be argues that knowing that people including children will be allowed into close proximity will amount to a danger due to the state of the premise as it did in Glasgow Corporation and Taylor.
Assuming that there is relevant consideration since the 1957 act that provides a non exclusive eplanation of the circumsances relating to the discharge of the duty of care. It provides that in deciding what is reasonable an occupier must expect children to be less carefu than adults.
Hence, the theme park may be liable in tort for the loss sustained by Pierre and Luc in the situation above however it is up to the courts discretion.
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