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 event, according to the judgment given by MacCowan LJ, the duty, if it did exist, was
discharged satisfactorily by the Johns by the erection of a seven foot high fence around the
premises, which might have been regarded as the taking of reasonable steps to protect against
the danger of individuals falling through the roof of the factory, considering the fact that it
must be thought to have been unlikely for a child to have managed to scale this fence, and
considering the fact that it must be considered unlikely for anyone at all to have sought to
have climbed onto the roof of the factory in any event.

In conclusion, the decision is that the requirement that the John have “reasonable grounds” to
believe that there was another in the vicinity of a danger known about by them requires that
the John actually did have these grounds.  This means that the John will not be liable where
these grounds might have existed, but they were not aware of the factors which would have
given rise to this reasonable belief