T8 Statutory duties of care Flashcards
statutory duty of care definition
a duty of care which is imposed by virtue of an act of parliament e.g.
> consumer protection act 1987
> health and safety at work act 1974
> occupiers liability act 1957 and 1984
statutory duty of care- Hartley v Myoh & Co [1954]
A fireman was electrocuted to death when turning of the
the electrics under the direction of the factory manager
at the scene of a fire.
On appeal, Mrs Hartley had no right of action for breach of statutory duty because her late husband was not employed by the factory and as such was not a person for whose benefit the regulations for the generation, Transformation, Distribution and the Use of Electrical Energy in Premises under the Factory and Workshop Acts 1901 and 1907 were made. However, the factory manager was under a common law duty to know where the electricity switch was, and he was liable in negligence for his failure to correctly identify it.
occupiers liability acts…
imposes a duty of care upon “occupiers” of land to take care of others who come on to their land
lawful visitors definition
someone who has a lawful purpose or legitimate reason for being on the land (express and implied permission
trespasser definition
someone who is not invited or permitted to be on the land
occupier definition
the person ( or person - there can be more than one occupier) with the day to day control of the land.
case example: Wheat v E Lacon & Co Ltd [1966]
The claimant and her family stayed at a public house, The Golfer’s Arms in Great Yarmouth, for a holiday. Unfortunately her husband died when he fell down the stairs and hit his head. The stairs were steep and narrow. The handrail stopped two steps from the bottom of the stairs and there was no bulb in the light. The claimant brought an action under the Occupiers Liability Act 1957 against the Brewery company, Lacon, which owned the freehold of The Golfer’s Arms and against the Managers of the Pub, Mr & Mrs Richardson, who occupied the pub as a licensee.
Held:
Both the Richardsons and Lacon were occupiers for the purposes of the Occupiers Liability Act 1957 and therefore both owed the common duty of care. It is possible to have more than one occupier. The question of whether a particular person is an occupier under the Act is whether they have occupational control. Lacon had only granted a license to the Richardsons and had retained the right to repair which gave them a sufficient degree of control. There is no requirement of physical occupation. However, it was found that Lacon was not in breach of duty since the provision of light bulbs would have been part of the day to day management duties of the Richardsons. Since the Richardsons were not party to the appeal the claimant’s action failed.
case example: Jolley v London Borough of Sutton (2000)
The boat was in a thoroughly rotten condition and represented a danger. The council had stuck a notice on the boat warning not to touch the boat and that if the owner did not claim the boat within 7 days it would be taken away. The council never took it away.
S.2 of the 1957 act, what is the duty that the occupier of premises owes to all visitors?
S.2 defines the “common duty of care” is a 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 invited or permitted by the occupier to be there
The Calgarth [1927] per Scrutton LJ:
‘When you invite a person into your house
to use the staircase, you do not invite him
to slide down the banisters, you invite him
to use the staircase in the ordinary way in
which it is used.’i
common duty of care S.3
> The degree of care, and of want to care- an occupier must be prepared for children to be less careful than adults
An occupier may expect that a person, in the exercise
of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.
case example: Glasgow Corporation v Taylor [1922]
The defendants owned the Botanic Gardens of Glasgow, a park which was open to the public. On the park various botanic plants and shrubs grew. A boy of seven years ate some berries from one of the shrubs. The berries were poisonous and the boy died. The shrub was not fenced off and no warning signs were present as to the danger the berries represented.
Held:
Glasgow Corporation was liable. Children were entitled to go onto the land. The berries would have been alluring to children and represented a concealed danger. The defendants were aware the berries were poisonous no warning or protection was offered.
common duty of care- S.4(a) Warning Signs
> S.4(a) 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;
No obligation to warn of an obvious risk
case example: Cotton v Derbyshire Dales District Council [1994]
The claimant, a 26 year old man, had gone out for the day with a group of friends and his fiancé over the Easter bank holiday. They had visited 3 pubs where the claimant had drunk about 4 pints. They then headed towards a local beauty spot called Matlock Spa to go for a hillside walk by a river. The party were in high spirits and became separated. The claimant and his fiancé drifted from the pathway and he was seriously injured when he fell off a cliff. There was a sign at one entrance to Matlock stating “For your own enjoyment and safety please keep to the footpath. The cliffs can be very dangerous, and children must be kept under close supervision.” However, there was no such sign at the entrance used by the claimant. The claimant brought an action based on the Occupiers Liability Act 1957 for the failure to adequately warn him of the risk.
Held:
There was no obligation to warn of an obvious risk. The claimant would have been aware of the existence of the cliff so such a warning would not have affected events.
common duty of care- S.5 risks willingly accepted by the visitor
S.5 The common duty of care does not impose
on an occupier any obligation to a visitor in respect
of risks willingly accepted as his by the visitor.
(the question whether a risk was so accepted
to be decided on the same principles as in
other cases in which one person owes a duty
of care to another).
occupiers liability act 1984
Extends a duty to “Trespassers” if the following can be shown:
> Occupier knew/ought reasonably to have known there were trespassers within the vicinity;
Occupier knew/ought reasonably to have known of the existence of the danger/hazard;
The danger was one which in all the circumstances of the case could have been safeguarded against
case example: Revill v Newbery [1996]
Mr Newbery was a 76 year old man. He owned an allotment which had a shed in which he kept various valuable items. The shed was subject to frequent break ins and vandalism. Mr Newbery had taken to sleeping in his shed armed with a 12 bore shot gun.
Mr Revill was a 21 year old man who on the night in question, accompanied by a Mr Grainger, went to the shed at 2.00 am in order to break in. Mr Newbery awoke, picked up the shot gun and fired it through a small hole in the door to the shed. The shot hit Mr Revill in the arm. It passed right through the arm and entered his chest. Both parties were prosecuted for the criminal offences committed. Mr Revill pleaded guilty and was sentenced. Mr Newbery was acquitted of wounding. Mr Revill brought a civil action against Mr Newbery for the injuries he suffered. Mr Newbery raised the defence of ex turpi causa, accident, self-defence and contributory negligence.
Held:
The Claimants action was successful but his damages were reduced by 2/3 under the Law Reform (Contributory Negligence) Act 1945 to reflect his responsibility for his own injuries.
Q:what is the difference between the occupiers’ liability act 1957 and the occupiers’ liability act 1984
1957- lawful visitors
1984- trespassers
Q: when does an occupier owe the same duty towards a trespasser?
> he/she is aware of the danger or has a reasonable grounds to believe that it exists
he/she knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that s/he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not)
the risk is one against which, in all the circumstances of the case, he/she may reasonably be expected to offer the other some protection.
Q: what effect will putting up warning signs have?
> clear, prominent and universally understood signs
can assist in discharging a duty of care
