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law 2b tort, injunctions, 5. Defences, mitigation of loss, Keown v…

- - - - 3. Lawful Visitor
        
        Invitee or Licensee
        
        Anyone on the premises who would under the common law have been an invitee or licensee
        
        Anyone on the premises with the occupier's permissions
        
        Express
        
        Implied
        
        doctrine of allurement Jolley v Sutton
        
        A child will be lawful visitor if he comes on to the land to investigate something that is dangerous and attractive to children
        
        entry to communicate Robson v Hallett
        
        Entry to communicate with occupants
        
        repeat visits Lowery v Walker, Harvey v Plymouth City Council
        
        If occupier knows that people are repeatedly visiting but does nothing to stop it
        
        statutory
        
        Under s.2(6) of the Act, those with Statutory powers of entry are visitors under the Act, such as meter readers, firemen and police officers with a warrant. [Even if they do not have permission]
      - 2. Premises
        
        Includes a person occupying or controlling 'any fixed or moveable structure, including any vehicle , vessel or aircraft
        
        Buildings, houses or land
      - 4. Common duty of care
        
        s.2(2) - 'duty to 'take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is permitted or invited by the occupier to be there'
        
        It is the visitor, rather than the premises, that must be kept safe
        
        Roles v Nathan - duty is same as duty of care in negligence, and standard of care expected will be modified to take the usual risk factors into account
        
        Tomlinson v Congleton BC - occupiers need not guarantee the safety of the visitors; their duty is to take reasonable care only
        
        Warning Signs - s.2(4)(b): where a visitor is damaged by a danger of which he was warned, this alone does not absolve the occupier of liability, unless it was enough in all the circumstances to make the visitor reasonably safe
        
        can be express or implied
        
        Woollins v British Celanese (D put up sign warning for dangerous roof - not visible so D was still in breach of duty
        
        children
        
        s.2(3)(a) - an occupier must be prepared for children to be less careful than adults (seen in Glasgow Corporation v Taylor - council held liable after planting poisonous berries in park as it is known that children may try to eat them )
        
        Phipps v Rochester Corporation - 5 year old boy left unsupervised on D's wasteland, V fell into large trench - D was not in breach of duty as reasonable parents would not allow their child to enter a dangerous situation
        
        Specialist Visitors (unders.2(3)(b)) - an occupier may expect that a specialist visitor will be aware of and protect himself against risks within his own specialism
    - - Ashdown v Samuel Williams and Sons ltd(C took shortcut across D's railway good yard and hit by railway trucks) - if occupier states that people take shortcut at own risk, then they are not liable
      - Link to UCTA 1977 - exclusion clauses (see 3b Coggle)
  - - - Sufficient degree of control
      - Wheat v Lacon - 'if a person has any degree of control over the premises it is enough
    - - Liability to trespassers at common law
        
        Addie v Dumbreck - no liability to child killed when trespassing on a coal mine unless acting maliciously or recklessly (occupier had no liability to trespassers until amendment in British Railways Board v Herrington)
        
        British Railways Board v Herrington - occupier owed child trespasser a common duty of humanity if knew of danger and that trespass was likely
      - Trespassers can be any person:
        
        -who enters without invitation
        
        -whose presence is either unknown to the occupier, or known to the occupier, but he has objected in practical way such as locking a gate or giving a verbal warning
      - a person can become a trespasser - if he exceeds the limits of that permission
        
        Exceeding the limits permission
        
        Limits as to area
        
        a person who is invited on to property may be trespasser if entering a restricted area
        
        Pearson v Coleman Brothers
        
        Exceeds permission
        
        Limits as to time
        
        a visitor who stays longer than they should becomes a trespasser
        
        Wood v Leadbitter
        
        Limits as to purpose
        
        a visitor invited to the premises for a particular purpose who then decides to undertake a different activity risks becoming a trespasser
        
        The Calgarth - 'when you invite a person into your house to use the stairs, you do not invite him to slide down the bannisters' (Scrutton LJ)
        
        Tomlinson v Congleton BC - C visited country park and decided to jump into a lake despite a sign forbidding swimming
    - - s.1(1)(a) - the claim must arise from the dangerous state of the premises or things done or omitted to be done on them
      - s.1(3) An occupier owes a duty of care in respect of a danger on his premises if:
        
        (a) - he is aware of the danger and has reasonable grounds to believe it exists
        
        (b) - he knows or has reasonable grounds to believe someone else is in the vicinity of the danger or may come into it
        
        White v St Albans City Council - C injured taking a short cut to get to his car parked in D's car park - s.1(3)(b) was not satisfied as the occupier did not know that the shortcut was used and was not aware of any facts from which a reasonable person would infer this
        
        Reasonable occupier must have actual knowledge from which a reasonable person would infer that danger exists
        
        (c) - the risk is one against which, in all the circumstances of the case, he may reasonable be expected to offer the other some protection
        
        Donoghue v Folkestone Properties - C, who was trespassing dived into D's harbour in the middle of a winter night, breaking his neck
        
        D owed no duty under '84 Act, as there is no reasonable ground to believe anyone would want to dive into a harbour on a cold winter night
    - - s.1(4) - duty to take such care is as reasonable in all the circumstances to see that the trespasser does not suffer injury on the premises because of the danger
        
        Ratcliff v McConnell - C(a student) climbed the fence at his College in order to access the swimming pool at night. He jumped in to shallow water and was seriously hurt
        
        No requirement to warn adult trespassers of obvious risks such as swimming pool having a shallow end
      - Tomlinson v Congleton - Lord Hoffman: duty owned under '84 Act is 'intended to be a lesser duty, as to both incidence and scope' than the duty to lawful visitors under the '57 Act
      - Donoghue v Folkestone Properties - Lord Phillips MR: the duty is significantly less exacting than the one owed to lawful visitors - does not extend damage to property, unlike the '57 Act
    - - Has D taken reasonable care?
        
        likelihood of trespass
        
        seriousness of the injury risked
        
        cost and practicality of precautions
        
        likely age of any trespasser
        
        visibility and attractiveness of any danger
        
        common sense
        
        an occupier should not have to guard against an irresponsible minority
      - Reasonable steps to warn or discourage - s.1(5): occupier may be able to discharge his duty by taking such steps as reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk
        
        Tomlinson v Congleton - even if duty had been owed, the occupier forbidding swimming had done enough to discharge the duty (D not expected to spend a fortune preventing visitors being injured by the lake's obvious danger
    - - Contributory negligence
      - Consent
- - - - claimant: must have legal interest in the affected land (Hunter v Canary Wharf)
      - defendant: creator of nuisance, or allows nuisance (Tetley v Sedleigh), or natural causes they are aware of (Leaky v National Trust)
    - - usually indirect: roots, ash, vibrations (Sturges)
      - gases (St Helens Smelting)
      - loss of amenity/damage (Miller v Jackson)
    - - (unreasonable for D to suffer it), factors of reasonableness:
      - Locality
        
        what nuisance can you expect in the area in question? e.g. sending trucks through construction site vs housing estate
      - duration
        
        has to have lasted a while to be a nuisance
        
        exception - duration less important when physical damage (Crown River Cruises v Kimbolton Fireworks)
        
        exception - temporary building work still unreasonable as was constant and late *(Dekegser's Royal Hotel v Spice Bros)
      - degree
        
        how bad it was (Barr v Biffa Waste) bad smell for 5 years
      - sensitivity
        
        how vulnerable is the claimant (Network Rail v Morris)
        
        unusually vulnerable claimants usually don't succeed
      - social benefit
        
        (Miller v Jackson) - not unreasonable if provides social benefit e.g. cricket club
      - motive
        
        (Hollywood Silver Fox Farm v Emmett) - somebody shooting to scare foxes for revenge is bad motive
    - - Prescription
        
        if no complaint in 20+ years =prescriptive right to continue (Lawrence v Fen Tigers)
        
        must be the same parties, new inhabitant=new party
        
        begins at the point it becomes an actionable nuisance
      - not defences
        
        moving to nuisance (Sturges) - C may take action even if they moved there
        
        C could have self-helped - they are under no obligation to
        
        D was using reasonable care
      - statutory authority
  - - - claimant must have an interest in the land (own/rent/any other interest)
      - defendant is owner/occupier - must have some control over land
    - - not already naturally present (Giles v Walker)
      - not naturally accumulates (Ellison v MoD)
- - - - C's own behaviour fell below the standard of the reasonable person
        
        Brannan v Airtours - Court decided that C was 50% to blame for his injuries and the amount of damages were reduced to reflect his degree of fault
      - C's behaviour contributed to the loss (was damage a reasonably foreseeable consequence of C's breach)
        
        Froom v Butcher - C's damages were reduced by 25% to reflect his own contribution to his injuries
      - Decided in a percentage term to see how liability/damages is distributed
- - - - eg. pain, suffering and loss of amenity(changes in future lifestyle)
      - Pecuniary losses (financial losses that cannot be precisely calculated)
        
        eg. future loss of earnings, cost of future medical care
        
        future loss of earnings is calculated by : multiplicand x multiplier (number of years)
        
        For loss of earnings claim, multiplier is meant to represent the years that C would have worked and earned a living that are not available to him now because of the injury received (difficult to determine as the court have to guess whether C would have lost his job or changed career)
      - Non-pecuniary losses (for types of damages that cannot be quantified in monetary terms)
        
        eg. pain, suffering and loss of amenity, Bereavement under the Administration of Justice Act 1976)
    - - Eg. repair costs or lost earnings up to the trial date
      - Damage to property - calculated by market value, repair cost or diminution in value
      - For pecuniary(monetary) losses incurred between incident and date of trial
    - - Lump sum
      - Structured settlement (Damages Act 1996) - Parties can agree that all or part of the sum awarded will be paid as periodical payments at regular intervals for life or a set period of time - amount can be reassessed at intervals to ensure its value is maintained
        
        It may also be fairer to D, if C's condition improves and no longer requires the same level of support and cost
        
        However, the Courts have no power to order a structured settlement should the parties not agree to it
        
        Structured settlement may be fairer to C, whose condition may deteriorate over time