Tort Law Week 5 Case Notes
Case
Wheat v Lacon
1966
Held
The defendant brewers (Lacons) were the owners of a public house,
the first floor of which was lived in by the manager. The plaintiff’s
husband got injured due to a handrail that was too short, and he sued
D. Issue whether D counted as ‘occupier’ of first floor.
Held: They were. The defendant brewers, and their manager, could
both be occupiers of the premises simultaneously. The relevant duties
owed under the 1957 Act would depend upon the ‘circumstances’ of
the occupation, and weren’t breached in the present case.
Occupation is based on control and not necessarily on any title to or
property interest in the land: the question is whether the defendant had
sufficient control of the premises to be the person responsible for the
safety of visitors.
Haseldine v C
A Daw & Son
Ltd [1941] 2
KB 343
The landlord of a block of flats hired an engineering firm to maintain
the lift. The engineers told him the rams needed replacement but
didn’t tell him the lift could be dangerous, and said they would make
monthly visits to grease the lift till the war ended and they could get
replacements. They messed it up, and the plaintiff got injured after the
left fell.
Held: Whether the plaintiff was an invitee or a licensee of the
landlord, the only obligation on the landlord was to take care that the
lift was reasonably safe, and that he had fulfilled that obligation by
employing a competent firm of engineers to make periodical
inspections of the lift, to adjust it and to report on it, and that,
therefore, the landlord was not liable (but the engineers were).
Ashdown v
Williams
1957
A person who asks for and is given a gratuitous ride in a vehicle,
whether in the horizontal or vertical plane, must take the vehicle as he
finds it and is only entitled to a warning of a danger of which the
owner is aware, and in the present case the owner of the lift was not
aware of any danger in operating the lift.
People took a short cut over the defendant's land. There was no
contract by which they entered. They just walked across the land. The
defendants put up notices which were clearly visible to all of them.
The notices told these bare licensees that they took the short cut at
their own risk. The notices were held to be effective to protect the
occupier. They did little more than tell the licensees the position at
common law: for, as we all know, a bare licensee came at his own
risk.”
But, even accepting the case as rightly decided, it only applies to the
case of a bare licensee. Towards an invitee, who entered by virtue of a
contract, the occupier could never exempt himself from liability
except by a condition contained in the contract or incorporated in it.
In every single case when a carrier has sought to rely on conditions to
exempt himself from liability to a passenger, the sole question has
been: was the condition part of the contract?
McGeown v NI
Housing 1994
Phipps v
Rochester
[1955]
The claimant was injured when she tripped in a hole on land owned
by the defendant. The land was a public right of way. It was held that
the defendant was not liable as the claimant was not a lawful visitor
under the Occupiers Liability Act 1957 because she was exercising a
public right of way.
No liability on occupier to maintain a public right of way.
On an October evening a small boy and his sister walked across a large
open space of grassland, part of a building site on which a housing
estate was being developed by the defendants. Through the grassland
a long deep trench had been dug for the purpose of laying a sewer, and
into this the boy fell and broke his leg. Danger was obvious to adult
but not to children. Issue whether the occupier owed a duty to the
children.
HELD: Children as a class were impliedly licensed to play on the
grassland, and that the trench, though not an allurement or a danger
concealed from an adult or a big child, was a danger imperceptible to a
little child of the plaintiff's age; but that, although a licensor who
tacitly permitted the public to use his land without discriminating
between its members must assume that the public might include little
children, he was entitled to take into account that reasonable parents
would not permit their children to be sent into danger without
protection; and that, as a general rule, he would have discharged his
duty towards them if the dangers which they might encounter were
only those which were obvious to a guardian or of which he had given
warning comprehensible by a guardian.
DEVLIN LJ: “It would not be socially desirable if parents were, as a
matter of course, able to shift the burden of looking after their
children from their own shoulders to those of persons who happen to
have accessible bits of land. Different considerations may well apply to
public parks or to recognized playing grounds where parents allow
their children to go unaccompanied in the reasonable belief that they
are safe.”
Ferguson v
Welsh 1987
HL
In breach of a term of the contract that the work was not to be subcontracted out, Mr Spence engaged the services of the Welsh brothers
to carry out the demolition who in turn engaged the services of Mr
Ferguson to assist, who in turn suffered serious injury when a wall he
was standing on collapsed due to the unsafe practices operated by the
Welsh brothers. He brought an action against the Council.
He Lost. Mr Ferguson was a lawful visitor despite the clause
forbidding sub-contracting since Mr Spence would have apparent or
ostensible authority to invite him on to the land. However, the danger
arose from the unsafe system of work adopted by the Welsh Brothers
not the state of the premises. Whilst there was evidence that Mr
Spence had sub-contracted demolition work to those executing unsafe
practices on previous occasions, there was no evidence that the
Council were aware of this.
Roles v
Nathan 1963
Chimney Sweeps. A heating engineer had warned them of the
danger, and even forcibly evicted them at one point. They told
him they knew of the dangers and had been flue inspectors for
many years. They also ignored his advice to leave the building
due to high carbon monoxide levels.
The occupier was under no duty of care, because under S 2(3)(b) the
risk was incident to the workmens' calling, a danger they could have
been expected to guard against.
White v
Blackmore
[1972]
It was held that the warnings were enough for the occupiers to fall
within the S 2(4)(a) OLA 1957 defense.
C claimed damages for breach of section 2 of the Occupiers' Liability
Act 1957 for her husband’s (H) death while watching old car
("jalopy") racing. H was both a competitor and spectator. Notices
warning the public of the danger of motor racing were displayed that
stated that the organisers were absolved from all liabilities from
accidents "howsoever caused" to spectators.
Held: That at the time of the accident the deceased was a spectator
and since the defendants by the use of the words "howsoever caused"
on the warning notices had excluded their liability for accidents
arising from their breach of duty of care, as they were entitled to do by
section 2 (1) of the Act of 1957, the plaintiff's claim failed
BUCKLEY LJ: Liability limited in 2 ways. A competitor accepted all the
risks inherent in the sport of jalopy racing. A spectator is subject to
the condition set out in the warning notice. At the time when the
accident occurred the deceased was a spectator. The condition set out
in the notice was that they were to be absolved from all liabilities
arising out of accidents causing damage or personal injury howsoever
caused.
Per Lord Denning M.R. (Dissenting) The "common duty of care"
under section 2 (1) and (2) of the Act of 1957 of which the defendants
were in breach had not been excluded by the contract with the
deceased, nor by the warning notices. The organisers ought not to be
free to abandon all care of their spectators. They were insured and the
insurance company was behind this.
Tomlinson v
Congleton BC
(2004)
A lake that had formed in a disused quarry and was known to attract
many visitors in hot weather. Swimming in the lake was prohibited,
and the defendants displayed prominent notices reading “dangerous
water: no swimming”. C broke his neck while attempting a dive in the
lake, and claimed under section 1 of the Occupiers’ Liability Act 1984.
Issue whether state of the premises made posed the danger.
Held – HL: Any risk of the plaintiff suffering injury had arisen not
from any danger due to the state of the defendants’ premises or to
things done or omitted to be done on them within section 1(1)(a) of
the 1984 Act but from the plaintiff’s own action in attempting to dive
in too shallow water; that that had not been a risk giving rise to any
duty on the defendants; and that, in any event, it had not been a risk in
respect of which the defendants might reasonably have been expected
to afford the plaintiff some protection under section 1(1)(c).
Therefore I consider that the risk of the plaintiff striking his head on
the bottom of the lake was not one against which the defendants
might reasonably have been expected to offer him some protection,
and accordingly they are not liable to him because they owed him no
duty.
Also: Scope of visitor defined! No sliding down banister!
Should people accept responsibility for the risks they run
Extremely rare for an occupier of land to be under a duty to prevent
people from taking risks which are inherent in the activities they
freely choose to undertake upon the land.
Harvey v
Plymouth
Council 2010
A duty to protect against obvious risks or self-inflicted harm exists
only in cases in which there is no genuine and informed choice, as in
the case of employees whose work requires them to take the risk, or
some lack of capacity, such as the inability of children to recognise
danger.
Fell on to concrete cark owned by council.
Test for visitor under 1957 act not foresight, test whether the Council
had impliedly given its consent or licensed the use such as that put to
it by the claimant.
Implied license for “normal recreational activity, carrying normal
risks” only. The owner of a piece of land, even if the public have access
to it, does not owe a Duty of Care for any form of reckless activity, only
for the consequences of “normal” activities.
Harvey’s behaviour was deemed to go beyond the implied permission
for general recreational activity and accordingly it was found that he
was not a visitor and the Council owed him no Duty of Care under the
1957 Act.
Adams v
Rhymney
Valley District
Council [2001]
33 HLR 41
The implications for the owner of any land with open access is that a
liability exists to those engaged in “normal” activity on the land that an
occupier can be said to have, expressly or impliedly, consented to.
Then the Duty of Care to the individual would benefit from the
enhanced protection afforded by the Occupiers’ Liability Act 1957.
LIABILITY FOR DEFECTIVE PREMISES – NON-OCCUPIERS’
LIABILITY
House refurbished by D with toughened windows with removable
keys. With the keys removed and the windows shut, and C’s three
children died in a fire. C claimed the window design was negligent.
Issue whether the Bolam test applies.
Held: The Bolam applies to anyone exercising a particular skill,
irrespective of whether he is professionally skilled or qualified in that
particular area; where there is more than one course of action, each of
which is acceptable to a respectable body of professionals, such a
person is not obliged to make a conscious choice between them in
order to avoid being negligent. (Not guilty)
(Per Sedley L.J., dissenting) The purpose of the Bolam test is to enable
the court to determine whether a person purporting to exercise a
particular skill has exercised it with sufficient competence to escape a
charge of negligence. Where a landlord makes decisions relating to
repair or renovation work and fails to exercise a relevant professional
skill when doing so, it is not possible for a court to proceed on the
basis that an educated choice was made as to the alternatives
available. The court should therefore proceed by deciding whether the
eventual (inexpert) choice had made any difference to the outcome.
Pirelli
General Cable
Works v Oscar
Faber &
Partners 1983
The defendants designed a chimney negligently and cracks
developed in 1970, could with reasonable diligence be discovered in
1972 and were discovered in 1977. The Limitation Act 1939 limited
claims to 6 six years. Issue of 6 years since when?
Held: The date of accrual of a cause of action in tort for damage
caused by the negligent design or construction of a building was the
date when the damage came into existence, and not the date when the
damage was discovered or should with reasonable diligence have
been discovered.
Summary: It was held that parliament intended the damage to begin
from the date it was caused, and even if it gave an unfair outcome it
was for parliament to change that. The reasoning Lord Fraser gives for
interpreting the will of parliament the way it did is as follows: In
Cartledge v. E. Jopling & Sons Ltd. [1963], it was held by the date of
accrual was the date the damage was actually caused, not the date it
was discovered or could reasonably have been discovered. Cartledge
applies to both personal injuries and damage to property (even
though Cartledge was a personal injuries case). Parliament, in the
Limitations Act 1963, (which was evidently passed to deal with the
mischief disclosed by Cartledge) extended the time limit for raising of
actions for damages where material facts of a decisive character were
outside the knowledge of the plaintiff until after the action would
normally have been time barred, but it applied only to actions for
damages consisting of or including personal injuries. Parliament could
have extended this to damage to property, but did not, and the courts
must give effect to the will of parliament.
Lord Fraser also stated it is hard to access when damage should have
reasonably been discovered. In cases where the building is doomed
from the start, it may be said that damage was been accrued when the
building was built.
Rimmer v.
Liverpool City
Council 1985
(Back-ground
case 1)
At common law, a landowner who designs or constructs houses or
flats owes a duty of care to occupiers who might reasonably be
expected to be affected by defects in that design or construction.
The duty is to ensure that the occupier is reasonably safe from
personal injury:
In Rimmer, the plaintiff was the tenant of a flat in a block designed
and built by the defendants. The flat included a pane of glass which
was too thin and potentially dangerous. The plaintiff was aware of
the danger and had complained to the defendants about it. At first
instance, the defendants were found to be negligent; there had been
an obvious risk of injury from the glass amounting to negligence and
the defendants had a duty of care to the plaintiff. The Court of
Appeal upheld the decision. The duty arose because the defendants
had designed and constructed the building, rather than because
they were the plaintiff's landlords. Although the plaintiff was aware
of the danger it was not reasonable or practical for him to leave the
flat or to alter the glass panel and his inaction did not absolve the
defendants from liability.
Murphy v.
Brentwood
District
Council
1991(Background case
2)
The defendants negligently approved the plans for the construction
of a house. As a result, the foundations cracked and there was
extensive damage to the house. The plaintiff discovered the defects;
at that time, he was in occupation and had suffered no injury or
damage to property but was constrained to sell the house at an
undervalue. He claimed damages against the defendants. At first
instance, the judge awarded the plaintiff damages on the basis of the
principles in Anns v. Merton Borough Council 1978. The Court of
Appeal dismissed the defendants' appeal but the House of Lords
upheld it, expressly overruling Anns. In the course of his speech,
Lord Bridge stated that: “If a builder erects a structure containing a
latent defect which renders it dangerous to persons or property, he
will be liable in tort for injury to persons or damage to property
resulting from that dangerous defect. But if the defect becomes
apparent before any injury or damage has been caused, the loss
sustained by the building owner is purely economic …… These
economic losses are recoverable if they flow from breach of a
relevant contractual duty, but… in the absence of a special
relationship of proximity they are not recoverable in tort …”
Targett v
Torfaen
Borough
Council 1992
C had a weekly tenancy over D’s house, which had design (lack of
light) and building (no handrail on stairs) defects. C injured his leg
on the stairs. Issue whether steps were dangerous, and whether
Rimmer is still good law following Murphy.
Held: (1) The steps were potentially dangerous; the absence of a
handrail was a manufacturing defect and the absence of appropriate
lighting was a design defect. (2) HL in Murphy did not overrule
Rimmer. (3) It was not reasonable to expect a weekly tenant to
remove or avoid the danger, nor was it unreasonable for him to run
the risk of being injured by the danger.
Summary: Murphy talked about how a latent defect, once discovered,
cannot give rise to a cause of action for physical damage because once
it has been discovered the only cost it poses is in terms of pure
economic loss (cost of repairing or abandoning it). However, the Court
held that this only applied in cases where “A was free to remove or
avoid the danger in the sense that it was reasonable to expect him to
do so, and unreasonable for him to run the risk of being injured by the
danger” (Stephenson LJ in Rimmer). The case was different for
building owners and weekly tenants, and in the present case it was
not unreasonable for the plaintiff to run the risk.
Issue 1: Is Rimmer still good law?
Yes, Rimmer talks about liability for physical injury resulting from
dangerously defective premises or chattel where (i) the defect was
latent or unknown or (ii) where the defect was known but it would
not be reasonable to expect him to fix it, and not unreasonable for him
to run the risk of being injured by the danger.
Latent Risk can lead to liability for damage caused just like in
Rimmer. Murphy: no liability in tort for pure economic loss caused
by a defect (dangerous or otherwise). Discovered risk necessarily
only PE (cost of fixing or abandoning it). However, the present case
held that this was only in situations where it is reasonable to expect
the plaintiff to remove or avoid the danger, and unreasonable for
him to run the risk of being injured by the danger.
Gwilliam v W. Hertfordshire Hospital NHS Trust
Temporary splat wall = premises
UCTA S 2 (1)  can’t exclude liability for death or Personal injry
UCTA S 2 (2)  exclusion of liability for property damage subject to reasonableness test
Are council houses businesss premises for purpose of OLA? I think yes!
s2(1) OLA '57
Section which preserves the common law right that the occupier can:
...in so far as he is free to and does extend, restrict, modify, or exclude his duty...
s1(3) UCTA '77
UCTA only applies for business liability
"...from things done or to be done by a person in the course
of a business (whether his own business or another's)", or "...from the occupation of
premises used for business purposes of the occupier".
Therefore, this extends to liabilities incurred in the course of business activities but
also to liabilities arising in respect of the occupation of business premises.
s1(1)(c) UCTA '77
Breach of the Occupiers' Liability Act '57 is defined as negligence
s2(1) UCTA '77
Liability for death or PI cannot be excluded
s2(2) UCTA '77
Liability for damage to property can be excluded, subject to the requirement for
reasonableness in s11 and schedule 2
s2(3) UCTA '77
States that the fact that a person is aware of an exclusion clause/notice does not in
itself mean that they have consented to the risk (UCTA)
s1(3)(b) OLA '57
OLA only applies to damage to people and property NOT pure economic loss.
s2(5) OLA '57
Defence of volens applies where the claimant agrees to run the risk. It preserves the
common law position.