1957 Act Flashcards
Why made
Simplify fairly complex common law
Common duty that applied to all visitors
S 1(2) classes of people to whom the occupier owes a duty remains as it is under common law
Invitees- permission to enter is in material interest of the occupier
For example a social call or quote for work
Licensees- material interest of the occupier
Anyone with permission
Only warnings given
Now must prove implied license
Lowery v Walker (1911)
Ten members of the public use short cut
Objected but took no legal steps to stop it
Set loose horse which savaged claimant and was liable
Implied license in favour of the claimant
Implied license
Contractual agreement;
Direct contract- decorator, Plumber
S5(1) common duty of care will apply unless the contract actually applies for a greater level of care
_ subcontractor classed as a licensee
Those not requiring permission- meter reader, police with warrant
S6(2) visitors for the purpose whether or not they have been given permission
A02- public and private right of way not covered- private covered by 1984 act
No duty to trespassers
Holden v White (1982)
Milkman injured by manhole on d’s premises because of defective manhole cover
Not a visitor
National parks and access to countryside act (1949) excluded under s1(4)
Public right of way- common law used misfeasance but not non-feasance
McGeown v Northern Ireland Housing executive (1994)
C lived in culdesac on housing estate owned by defendants
Footpath fell public right of way
Didn’t maintain footpath and her action failed
Common duty of care
S2(1) same duty to all visitors unless extended, restricted, modified or excluded in agreement
Nature of the duty- s2(2) reasonable care reasonably safe for the purpose for which he is invited or permitted by the occupier to be there
‘Reasonable man’=forseeable risks
Fryer v Pearson (2000)
Family visitor injured by needle
Not created danger
Distinguished ward v tesco stores where a greater duty is owed for spiked yoghurt
Objectively meaning reasonable in the circumstances
Esdale v Dover District council (2010)
Block of flats
Path tripped
Tarmac and concrete
Rejected that they hadn’t acted reasonably
Cole v Davis-Gilbert and the Royal British Legion (2007)
Woman broke her leg stepped on hole whilst crossing village green
Inserting maypole
Owner-sued to keep visitors safe
British legion- who filled hope 21 months prior
No duty on owner to check
No duty cos filled it
Tough shit
1957-activities lawful in visit
Keep visitor safe not maintain safe premises
Liability for children
S2(3) must be prepared for children to be less careful than adults
The premises must be reasonably safe for a child of that age
Subjectively measured
Maloney v Lambeth (1966)
4 year old fell through a gap in the railways guarding a stair well and was injured
Adult couldn’t fall through gap
Occupier held liable by the court
Children
Unlikely to appreciate risks in a way that an adult would and may be attracted to danger
Guard against allurement
Glasgow Corporation v Taylor (1922)
7 year old child ate poisonous berries in a botanical gardens and died
Shrub was not fenced off
Liable as would attract child
Allurement sufficient for liability
Holley v London Borough of Sutton
Boat left on estuary for 2 years
Played in it
2 14- jacked up and 1 injured
Specific type of damage was not forseeable
Reversed some injury forseeable wagon mound
Phipps v Rochester Corporation (1955)
5 year old injured in trench dug by the defendant council
They played frequently there
Parents look after their kids
Liability to exercising a calling
S2(3)(b) guard against special risks ordinarily incident to it
Roles v Nathan (1963)
Chimney sweeps died
Carbon monoxide fumes while cleaning flues in an industrial chimney
Should have waited
Salmon v Seafarers Restsuraunts Ltd (1983)
Fish and chip shop fire
Firemen received injuries in relation to the fire
Liable
Independent contractors
S2(4) damage caused to a visitor by a danger due to the faulty execution of any work or construction, maintenance or repair by and independent contractor employed by the occupier
Reasonable to entrust the independent contractor
Contractor must be competent
Inspect it
Hire
Haseldine v Dawson & Son Ltd (1941)
Death of a claimant following the negligent repair of a lift by independent contractors
Too specialist
Ferguson v Welsh (1987)
Demolition contractors were hired by the local authority and employed claimant
Unsafe working systems caused injury and local authority was liable
Woodward v Mayor Of Hastings (1945)
Child injured in school steps left in a negligently icy state
Danger should have been obvious and so found liable
Gwilliam v West Hertfordshire NHS Trust (2002)
Splat wall held at fundraising at hospital trust
Girl hurt herself as it was negligently assembled
Public liability insurance-expired
Should check for insurance but not breached duty
Avoiding the duty
S2(1) occupiers are free to extend, restrict, modify or exclude his duty to visitors
Warnings
S2(4)(a) a warning will not absolve the occupier of liabiliy unless in all circumstances it was enough to enable the visitor to be reasonably safe
Rae v Mars ltd(1990)
Warning notice In respect of a deep pit inside the entrance of a dark shed with no artificial lighting
Warning was immediately inside the entrance and so the warning was insufficient to safeguard the visitor from the danger
When danger is obvious and sufficient steps have been taken there is no liability
Beaton v Devon County Council (2002)
Claimant injured whilst riding through cycle tunnel
Good condition and good lighting I’m tunnel
2 gullies well known
Done everything practical to prevent risks
Exclusion clauses
S2(1) of the 1957 act the right of the occupier to exclude liability ‘by agreement or otherwise’
Used in contract and effective notice
Ashdown v Samuel Willian’s and sons ltd (1957)
Negligent shunting of railway trucks while on the occupiers land
Notices excluding liability bought to her attention and she was a contractual licensee
Restrictions of exclusion clauses
Legal right
Strangers- tenants visitors , as they can’t agree to exclusion
S3(1) take advantage of protections
Children
Occupiers negligence- s2(1) unfair contract terms act 1977
Minimum standard of trespassers
General defences
Contributory negligence- reducing awards of damages according to the extent to which the court believes that the visitor is responsible for his own injuries or loss
Volenti non fit injuria- consent
S2(5) allows that an occupier has no liability to a visitor in respect of risks willingly accepted as his by the visitor
Risk must be fully understood by the visitor
Simms v Leigh RFC (1960)
No liability as rugby player sustained injury within normal rules of the game
Freely and voluntarily accepted the risk
