Occupier's Liability Flashcards
Taylor v Glasgow Corp
Poisonous berries in gardens.
No warning or isolation of danger, children could access easily
No wrongdoing on behalf of little boy
Berries attractive to children
But was parent negligent? Contributory negligence?
Dumbreck v Addie and Sons
Boy killed in colliery haulage system, 100 yds from road.
Only question was the capacity in which the boy was in the road.
- by invitation
- with leave & licence
- trespasser
Towards the trespasser, the occupier had no duty to take reasonable care for his protection, or even to protect him from concealed danger, only intentional acts. Must take land as they find it.
McGlone v British Rail
Railway footpath, climbed through wire and got electrocuted. Not an equal duty, but still a duty of care for trespassers. No duty to construct an impenetrable fence - too high a burden for trespassers. Obstacle only!
Fact that greater precautions could have been taken did not mean they should have been taken.
Titchener v British Rail
Mere presence of fence, despite gaps can constitute sufficient warning of presence of hazard. She knew line was there and dangers associated with it.
Circumstances such as age and intelligence of person entering premises were important
Tomlinson v Congleton
T dived into pond with shallow water in it, hit head. Swimming in pond prohibited and local authority had erected motives and distributed leaflets warning of dangers.
Lake did not present risks due to state of premises or anything done on premises, gave warnings. T was a person of full capacity who had chosen to engage in an activity with inherent dangers.
Who is an occupier?
Person occupying or having control of land or other premises (s1(1))
What kind of occupiers?
Any moveable or fixed structure , incl any vessel, vehicle or aircraft (s1(3)(a))
Wide (Thomson)
Duty of care for what?
Care which occupier must show, in respect of dangers due to
1) state of premises
2) anything done or omitted to be done on them (s1(1))
What kind of care?
Such case as is reasonable to ensure that such persons may be held to by virtue of a statute.
Not care against risks which he has willingly accepted as his own
Landlord / tenant?
Where landlord responsible for maintenance and repair, he has a duty to show same care. Otherwise, occupier ie tenant liable.
What does the English law say?
Duty all regardless of whether you invited them or not (same in Scotland now)
If aware of danger, reasonable grounds to believe person is in vicinity of danger, risk is one he can reasonably protect against.
How has the position of the law towards trespassers changed?
Dumbreck - no liability even if knew they were on your land, only for wilful acts (very low, little protection)
Titchener and McGlone - can still be liable for trespassers, dependant on circumstances of case incl age of pursuer, knowledge of danger etc
Rules for children
If children likely to be playing nearby, you ought to make the area safer. (Taylor v Glasgow Corp)
Age and knowledge can be relevant factors e.g. Where child fully aware of risks associated with hazard.
Parental supervision could be an influencing factor (dissent in Taylor v Glasgow corp)
What are the rules for persons who have willingly accepted the risks?
If a fireman goes onto property, knowing there is a fire and this is what he is here to deal with, he will be held to have willingly accepted such risk and there is no obligation to such person to guard again fire etc.
