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Occupier's Liability pt.2, if all conditions are satisfied then the…

- - - - from this 3 requirements will apply and all must be satisfied
        
        (1) it must be reasonable for occupier to have given the work to the independent contractor. the more complicated and specialist the work, the more likely it will be for the occupier to have given the work to the specialist.
        
        Heseldine v Daw & Sons (1941)
        
        Facts: a lift fell to bottom of lift shaft with claimant still inside it.
        
        Issue: could occupier be held liable?
        
        Decision: no
        
        Reasoning: contractor was fully liable, the occupier had satisfied the requirements imposed by s2(4) of 1957 act.
        
        (2) the contractor hired must be competent to carry out the task. presumably the occupier should take up references or recommendations or check with trade association, if any to satisfy this requirement. occupier should check the contractor is properly insured. if contractor fails to carry out appropriate insurance cover this, could be a fair indication that the contractor isn't competent.
        
        Bottomley v Todmoren Cricket Club (2003)
        
        facts: defendant contracted with a supplier who provided a pyrotechnic display. the display injured a visitor.
        
        Issue: could the occupier be liable
        
        decision: yes
        
        reasoning: any level of research on the supplier would have revealed their incompetence to deliver such a display, therefore liability under s 2(4)(b) for not satisfying the 'reasonable entrustment' requirement.
        
        (3) the occupier must check the work has been properly done. the more complicated and technical the work & the less expert the occupier, the more likely that his condition will require the occupier to employ an expert such as an architect or surveyor.
        
        Woodward v Mayor of Hating (1945)
        
        facts: a school was relocated during war-time. a child slipped on a step, as snow had been left on it by a cleaner
        
        *issue: could the occupier be liable?
        
        decision: yes
        
        reasoning: hadn't checked that the contractor had completed work satisfactorily.
- - - - what amounts to sufficient warning will be a question of fact in each & will be decided by the judge on the evidence. if premises have extreme danger or they're unusual, occupier may be required to erect barrier or additional warning to keep visitors safe.
    - - S.2(4)(a) states "where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe"
        
        warning may discharge the common duty of care, as in Roles v Nathan, this is not enough unless the visitor can still be reasonably safe.
        
        Rae v Mars (UK) Ltd (1990) - where a warning was ineffective in respect of a deep pit inside the entrance of a dark shed, so the occupier was liable. was held that where danger is extreme/unusual, it's not enough for there to be a warning; a barrier/additional notice should be placed.
        
        Staples v West Dorset District Council (1995) - established that where a danger is obvious & visitor is able to appreciate it, there's no need for a warning sign. - danger of wet algae on a high wall at Lyme Regis should have been obvious. this is particularly true where the occupier takes reasonable steps to avoid harm.
      - if a set of words are established to be nothing for more than an attempt to avoid liability they will not be accepted as a warning. however, some risks are indeed possibly so obvious that there is no need for any additional warning.
        
        Beaton v Devon County Council (2002) - claimant was injured riding his bicycle through tunnel. tunnel was well lit & in good condition. two gullies which ran through it were well known. court held that occupier had done everything practical to keep visitor safe.
- - - - Herrington v British Railway Board (1972)
        
        facts: trespasser, the claimant, was electrocuted by D's railway line. trespasser entered property through fence which had been previously pushed down as a shortcut to a park. D knew of the fence defect.
        
        issue: could trespasser recover as they were injured on the property which D had control over.
        
        decision: yes, claim was successful.
        
        reasoning: HoL was entitle to overrule itself after 1966 practice statement, therefore this case overruled R Addie & Sons v Dumbreck 1929. A humanitarian attitude is expected towards trespassers, however there is only a requirement to take reasonable steps to allow a trespasser to avoid risks. the claimant was a 6 year old child. the result would now be the same under the Occupiers' Liability Act 1984.
- - - - KEY CASE - Ratcliff v McConnel (1999) 1 WLR 670
        
        claimant dived into shallow end of open-air swimming pool at night, after shrinking. risk of diving into shallow water was obvious to any adult therefore no duty of care to protect the claimant.
      - The duty owed under the 1984 Act does not cover damage to property (s1(8)).
        
        The duty can be discharged by taking steps to warn of the danger concerned, or to discourage persons from incurring the risk (s1(5)).
        
        KEY CASE - Donoghue v Folkestone Properties (2003)
        
        claimant was injured when he was trespassing on a slipway in a harbour & dived into the sea, hitting a grid pile used for mooring boats. grid pile would've been seen at low tide. the injury happened in middle of winter, at about midnight. court held that the occupier did not owe the claimant a duty of care under 1984 act as they would not expect that a trespasser may be present or jump into the harbour at that time of day/year.
  - - - KEY CASE - Higgs v Foster (2004)
        
        police officer investigating a crime entered the occupier’s premises to carry out surveillance. He fell into an uncovered inspection pit suffering severe injuries, causing him to retire from the police service. The police officer was judged to be a trespasser on the premises.
        
        Although the occupies knew the pit was a potential danger, they could not have anticipated his presence on the premises or in the vicinity, so the were not liable.
    - - Rhind v Astbury Water Park (2004)
        
        The facts On the 17th May 1998, the Claimant dived in Astbury Mere. He was trying to get a football which had been kicked into the Mere. He was nearly 20 at the time and had been playing with a group of friends on a field next to the beach. Although the Claimant had not swum in the Mere on this occasion, he and his friends had previously and they were aware that swimming was not allowed.
        
        The Judge found that all had read at least one of the notices saying “private property – strictly no swimming allowed” at some time.
        
        The Claimant jogged into the water for about 10 paces and when the water was somewhere between his lower thighs and waist, he dived. He described his dive as a flat, shallow dive. Although it was not clear, the Judge found that the Claimant had probably struck his head on a plastic object on the bed of the lake. As a result, he suffered a C5 body wedge compression fracture resulting in incomplete Tetraplegia.
        
        The Judge found that the evidence was that the public at large were invited to roam all over the country park and did so, including the land on the edge of the Mere itself. The Judge found that the Claimant was not a trespasser when he entered the water to retrieve a ball, although such permission did not extend to swimming or diving. The notice prohibited swimming and did not purport to prohibit activities that the Judge had observed on a video shown to him, namely adults and children playing about in and wallowing in the shallow water near the beach, which had open access from the country park.
        
        the decision
        
        The Defendants were licencee or sub-licencee and had limited rights over the Mere, carrying out specific activities upon it. They were not general occupiers. Their activities had no relationship whatever, either to the Claimant or his entry into the water.
        
        The risk of injury through diving was so obvious that these Defendants owed no duty to post specific warning of that risk or to exclude members of the public from the water’s edge, whether by fencing, landscaping or notice.
        
        Neither Defendant could be reasonably required to scour the Mere’s bottom for obstructions or to have patrols attempting to stop people entering the water.
        
        The Claimant knew swimming was prohibited in the Mere as was by implication, driving. The true cause of the Claimant’s accident was his foolhardy action in running into the water and doing a running dive.