CLIENT OPINION LETTER

Develop a Client Opinion Letter in favor of a prospective client {Tom or.

Alpha}, who had sort your advice regarding the case revealed below. Primary
materials would be provided on E-Learning/Google-classroom to help
prepare your document.

Case 2

Facts.

John’s owned a defunct factory, around which they had erected a seven foot-fence topped
with barbed wire.  There was however a small section of the fence at which the barbed wire
was missing. Alpha, a nine-year old boy, managed to locate this spot, and using an adjoining
wall as a foothold, managed to scale the fence and to enter the John’s premises.  After he had
gained access to the factory premises, he climbed a ladder onto the factory roof itself.  He
then fell through a skylight on the roof of the factory, and sustained serious injuries as a
result.

During an initial meeting with you and Alpha’s Mum, she sorts your advice on if she can
pursue a claim on behalf of Alpha (guardian ad litem) and to know if John owed a duty of
care to Alpha under the Occupiers Liability Act. You told Alpha’s Mum you would get back
to her on her questions.

Issues.

Where John does not have actual knowledge that another non-visitor is in the vicinity of a
danger that they are aware of, it is necessary for them to have actual knowledge of certain
facts or circumstances that would create grounds for a belief that there is another person in
the vicinity of the danger? Failing this, can a John be liable where they ought to have known
that there were circumstances which gave rise to this belief?
Held.

The Court of Appeal dismissed the appeal. In order for a John to bear a duty of care to the
Alpha, it was found that s1 (3) (b) of the Occupiers Liability Act 1984 needed actual
knowledge of the Alpha's existence in the vicinity of the danger, or facts that would produce
a reasonable belief that another was likely to be present.  The Court of Appeal reviewed
whether John should be deemed to have constructive or imputed awareness of the facts that
led to these conditions. As the textual phrasing of s1 (3) (b) merely specifies that John "has
reasonable grounds" to assume that there was another there, some arguments could be made
to support this reasoning. As a result, requiring actual knowledge of these grounds could be
argued to encourage Johns not to inquire too deeply into circumstances that might give rise to
this belief, or to otherwise “close” their eyes to such facts in order to avoid having a duty of
care imposed on them in respect of these non-visitors.

The Court of Appeal rejected this argument, agreeing with Ognall J's ruling in the High Court
that s1(3)(b) Occupiers Liability Act 1984 did not aim to impose a duty of care on Johns in
circumstances where they knew or should have known that there was another present.

Given that the factory had closed and that there was no evidence that any children in the area
had been seen or witnessed by the Johns, there could be no duty of care in the circumstances,
even if it was assumed that the evidence of children being near the factory should have been
known to the Johns. It was held, that the Johns, by having erected a high fence (and for this
fence to be topped with barbed wire) had inspected this fence and found no signs of trespass,
meaning that they did not in fact either “shut their eyes” to the circumstances, and that they
did not have actual knowledge of facts which would give rise to a reasonable belief in the
presence of another.

In any case, according to MacCowan LJ's opinion, the duty, if it existed, was satisfactorily
performed by the Johns by erecting a seven-foot-high fence surrounding the premises, which
may have been viewed as taking reasonable precautions to guard against individuals falling
through the factory's roof., given the fact that a youngster would not have been able to scale
this fence, and considering the fact that no one would have attempted to climb onto the
factory's roof in the first place.
Finally, the court holds that the requirement that the John have "reasonable grounds" to
believe that someone was in the proximity of a danger that they were aware of requires that
the John actually had these grounds. This means that the John will not be held accountable if
these grounds existed but they were unaware of the elements that would have led to this
reasonable conclusion belief.