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Supervision 4: Occupiers Liability (Visitors (the standard of care (Simms…

- - - - if the defendant carelessly starts a fire and the the firmans burned while putting it out, the defendant is liable for the claimants injuries. (ogwo v Taylor), 1988
  - - - In the course of a rigby game, Simms was tackled, breaking his leg, allegedly after coming into contact with a concrete wall over seven feet from the touchline. Held: even if he in fact hit the wall, this was such an unlikely event as to be unforeseeable by the occupier of the ground, and so it was not liable to him.
    - - Ward was injured when she slipped on some yoghurt spilled on the floor of Tesco, where she was shopping. Tesco gave evidence that the floor was generally brushed six times a day. and that staff were instructed to deal with the spillages if they saw them. There was sufficient evidence of negligence, and in the absence of explanation, Tesco would be held liable.
    - - the visitor is expected to exercise due care
        
        the occupier must be prepared to expect less care from children
        
        workers should be expected to know the risks hen entering the premises.
        
        Roles v Nathan
        
        a claim by chimney sweeps against a householder for dangers arising from fumes was not available
        
        no blanket defence though. Where a claimant carelessly starts a fire on it premises and and the claimant is injured fighting the fire, the defendant cannot defeat the claim by merely saying that the risk is inherent in the job of a firefighter.
  - - - Titchener v British Railways Board
      - defences
        
        consent: the defendant may argue that the claimant consented to run the risk (s2(5)). Agreements of that sort usually have to be express, though in extreme cases the claimant may be held to have agreed impliedly to run a risk which was very obvious. :lock:
        
        causation: the defendant ma argue that the claimants decision to ignore the risk was unforeseeable, or at least broke the chain of causation and relieved the defendant of responsibility. for the consequences which followed. this argument is unlikely to succeed unless the claimants conduct was unrational :lock:
        
        contributory negligence: the defendant may argue that the claimant is partly to bale for the accident, though the failure to heed the warning. The effect if this argument is only to reduce the claimants damages, not eliminate the claim entirely. and so it does not take extraordinary strong facts to back it up. :lock:
        
        Sayer v Harlow UDC: Sayers became trapped in a public laboratory because the cubicles lock was defective. after shouting for help for 10 or 15 minutes, she attempted to climb out, and injured herself in the process. Held: the occupiers of the premises were liable for the injuries, though the damages would be reduced by 25% for contributory negligence.
        
        exclusion of liability: he may argue that it resulted in the exclusion of liability.
- - - - (a) the occupier knows of the danger, (b)the occupier knows the trespasser is, or may in the future, come into the vicinity of the danger, or has reasonable grounds to know it (c) it is reasonable to expect the occupier to offer some protection to the trespasser
      - example: where on the 27th of december the claimant dives off a slipway and into a harbour, it was held that the harbour owner owed no duty: it was unforeseeable that anyone would trespass this way in winter. while in sumer it was entirely foreseeable (Donoghue v Folkestone Properties Ltd)
  - - - Ratcliff v McConell (1999)
        
        Ratcliff an his friends decided after a night of drinking to have a swim int he college swimming pool. by diving into the water he hit his head. It was held that the danger should have been apparent for any adult. Additionally, ratcliffe had consented to the risk.
      - Tomlinson v Congleton Borough Council
        
        the occupiers of a disused quarry erected notices put up many sign saying no swimming etc. . Tomlinson, aged 18, dived from a standing position and was rendered tetraplegic. It was held that his injuries were not caused by the state f the premises or an conduct of the occupiers, but by his own misjudgment. There was been no liability, even if he had been a lawful visitor to the lake.
  - - - British Railway Board v Herrington
        
        this duty of restated in the occupiers liability act of 1984, which is now the governing legislation.
- - - - shortly after moving into his new council flat, the tenant complained of a particular dangerous panel of breakable glass, which he argued was a danger to his young son. He was told that it was a standard installation and could not be changed. Nineteen months later, his son was injured by putting his hand through it. Held: the council was liable for negligence, in its capacity as designer and builder of the flats.
  - - - Land lord created the danger
      - Landlord is under a duty to repair.
- - - - the claimant may sue for an intrusion at any hight or depth above or below the land.
      - Bernstein v Leigh v Skyviews and General
        
        Skyviews took aerial photographs of Bernstein's mansion and Bernstein sued them in trespass. The action failed because it could not be proved that the plane had been on the ground and II bernstein had no direct use for it. iii) sky views were protected by statute.
    - - if the land is subject to a lease, it is the tenant, not the landlord, who is legally in possession and can sue for intrusions.
    - - no defence that the defendant id not realise that it was unlawful. also there is no defence if the defendant gets lost on the land.
      - however, if he is dragged involuntary onto the land then this is a defence.
    - - exercise of the defendants own property rights, such as private right of way
      - putting right some wrong which is the claimants responsibility, such as by abatement of nuisance
      - statutory authority to enter the claimants land, such as under the Police and Criminal Act 1984
      - public right, such as the right to walk the highway
      - permission
        
        the claimant cannot sue if he was given permission to be on the land. Permission can be implied from circumstances. such as walking on the land and knocking on the front door. the defendant becomes a trespasser if he acts in a manner not permitted by the terms of the licence
        
        Hurst v Picture Theatres (1915) -> during a cinemaHurst sitting in the audience, w as suddenly and unjustifiably told of one of the staff to leave.. When Hurst refused he was forcibly rejected. Held: he could sue in assault.
      - necessity
        
        courts are not very consistent in their treatment of necessity.
        
        extreme circumstances are needed before the defendant will have the defence of necessity.
        
        Example: ned for shelter, no matter how desperate cannot be given because it would open to abuse -> Southwark London Borough Council v Williams)
      - general comments:
        
        simply because the defendants has the right to walk the highway going over the claimants and does not entail a right to spy on the claimant -even if the defendant keeps walking as he spies (Hickman v Maisey)
        
        if the defendants act is initially defendable and then becomes a crime it is treated as a crime all along
    - - the claimant may recover any financial loss proved to flow from the trespass. if the defendant took over property -> the claimant may also recover a reasonable rental for the period.
  - - - a private nuisance consists of an unjustified interference by the defendant in the claimants enjoyment of land. the remedy usually consists of an award of damages.
      - it is not always clear where nuisance ends and trespass begins. It was once held that if the defendant lets a pile of rubbish fall onto the claimants wall, this is trespass (Gregory v Piper, 1829) but the modern position is unclear.
      - the test is usually one of directness -> if there is a cricket match, and balls are hit over the boundary, this is nuisance, if anyhthing (established in Miller v Jackson, 1977)
      - nuisance may take many forms. Maybe the claimants land has been physically damaged, say by emission of poisonous fumes from the defendants factory. Nuisance tends to have continousou sources of annoyance.
    - - General
        
        the courts needs to balance and assess whether the line has been overstepped the line which the court retrospectively draws. The court usually asks the question whether the defendant acted reasonably in the view of the harm to the client.
        
        no definite account of which activities constitute nuisance beyond saying that the defendants behaviour must be unreasonable in view of the damage it does to the claimants interest.
      - how severely did the defendant hurt the claimant?
        
        seriousness of th injury is a major factor in the balance
        
        both extend and its duration. Example: if the defendant temporarily delays in removing of manure, rendering nearby conditions unpleasant might not amount to nuisance, even though permanently (Swaine v Great Northern Rly)
        
        some judges speak of a continuing state of affairs before action will lie in nuisance -> it is hard to see why this should be the case. A state of affairs can be discovered in retrospect. In Spicer v See (1946) where fire in the defendants house spread to the claimants and damaged it, the defective state
        
        it is sometimes also held that private nuisance requires material damage to the claimants property, but anything serious enough to constitute a nuisance is likely to have an effect on the value of the property.
      - What was the type of injury?
        
        it is no longer realistic (if it ever was) to draw a very sharp line between physical injury to property and merely aesthetic offences. However, the law lord who drew that distinction was right in saying that the claimant will have an easier time in private nuisance if physical damage can be proved.
        
        example: Hunter v Canary Wharf: Several hundred claimants complained that the canary wharf building development had created clouds of dust which deposited itself on their property, and that Canary Wharf Tower, the centerpriece of the development, interfered with their TV reception: Held: the dust was actionable if it could be shown to have damaged claimants property but the interference with TV reception was not actionable. The reason why they rejected the claim with the TV was because it is analogous to ruing the claimants view, which has always been held as non-actionable
      - How valuable is the defendant activity
        
        the defendant has a better chance if his activity is in some way useful for the public. there is scope for disagreement of what constitutes are valuable activity.
        
        Miller v Jackson: the Millers complained that cricket balls from matches organised by Jackson often landed in their garden, and that a few had done damage to their house. Held: an actionable nuisance had been committed and the Millers were entitled to damages and an injunction to prevent repetition that damages could be awarded against the public but it would be against public interest for an injunction to be issued. (by Lord Denning MR) that the social utility of cricket outweighed the inconvenience to the Millers
      - What sort of locality did the event happen in?
        
        generally: the less pleasant the area in which the alleged nuisance occurred, the worse must the defendants behaviour if it is held to be a nuisance
        
        Murdoch v Glacier Metal Co: Murdoch claimed that the nighttime ´noise from Glaciers factory wa a nuisance.Held: the court had to take into account the character of the neighbourhood. Given that the factory was based on an industrial estate and was not the only major source of noise -> no action in nuisance was established.
        
        Laws v Florinplace: Laws complained of the opening of a sex shop and cinema club by Florinplace, in premises close to his home. he relied particularly on the adverse effect on property values and the attraction of undesirables to the previously placid residential area. Vinelott J held that it was arguable that nuisance had been established and restrained Florinplace from continuing his activities, pending full trial.
      - How sensitive is the claimant?
        
        a claim may be rejected that the claimant is unusually sensitive to the defendants activity. Unusually sensitive claimants are not protected even if the effect of the defendants activities is catastrophic.
        
        Robinson v Kilvert: Kilvert heated his premises to assist him in his trade of making paper boxes. Robinson, who occupied the floor above complained that the heat affected the brown paper he warehoused there, drying it and considerably reducing its value. Held: activities which would not injure ny but the most sensitive go trades were not actionable as nuisances
      - did the defendant set out to hurt the claimant?
        
        conduct that might be unexecptionable in normal circumstances might be a nuisance if intentionally used to provoke, annoy or harm the claimant.
        
        Christie v Davey (1893) -> loud domestic noises and Hollywood Silver Fox farm v Emmett -> shooting rabbits near the claimants farm and disturbing his stock.
    - - the traditional view
        
        others with no property right may not sue, regardless of how good their right might be on the land such as the wife of the tenant.
        
        this traditional view has been confirmed in Hunter v Canary Wharf
        
        it is usually considered that the claimant can only complain of private nuisance if the claimant has either possession of the land or has a property right in it. those with subsidiary property rights can also sue if their interest is affected.
      - new attempts to relax this requirement
        
        Khorasandjian v Bush: the clamainat complained that the defendant had threatened her with violence, followed her about and harassed her in person and over the phone. She sought an injunction to prevent repetition. The defendant argued that this could not be nuisance because she did not own the property at which she was harassed: she lived at home with her parents-
        
        The CA held that the claimant may sue despite this objection. However, the HL in Hunter v canary Wharf held that this was wrong. the law today would almost certainly catch the defendant on harassment but as to the tort of nuisance the defendants argument was perfectly correct.
      - European convention on HR
        
        a potentially more successful argument is based on Art 8 of the European convention of Human Rights where a claimant asserts a right to respect for private family life and home. it differs as it focuses on the claimants home and not the property in question. it also probably represents a more demanding standard than nuisance: it is a strong thing to say that the claimants human rights are infringed.
        
        article 8 was a factor leading to a ruling that noise from a military airport was a nuisance actionable by those living nearby (Dennis v Ministry of defence) And it has been held to be arguable that the convention give a right of action to children living on land even though they have no right of action in nuisance.
    - - it is sometimes held that liability in private nuisance is strict and is therefore quite different from negligence liability, which requires proof of fault.
      - it is absolutely true that the defendant may blunder into liability for private nuisance through ignorance of law, or through practical inability to see the laws standard of fault.