UOL Tort 2019 Zone A Question 2

Arjun operated a restaurant in Patrick’s large Victorian House. He decided to have the electrical wiring in
the restaurant replaced. Sally agreed to carry out the work and before commencing the job, she placed
signs on the railings outside the restaurant warning of the danger of loose cable wire on the external
steps to the front door. The sign also stated that those entering the building did so at their own risk.
Jacob, a delivery man lost his footing on the steps, breaking his arm and damaging his valuable Rolex
watch.

During the lunch service Wanda, the 3-year-old daughter of two customers, who was playing while her
parents finished their meal, found her way to a storage cupboard and badly cut her face when she
tripped over a wire as she entered.

Feeling upset by the accidents, Sally went home early with a headache, leaving a live electrical wire in a
very dangerous condition. That night after closing time, Tony, a thief, broke into the restaurant and
suffered an electric shock when he accidentally touched the wire. He was badly burned but managed to
phone the emergency services. Gloria, one of the paramedics who arrived to help Tony, suffered cuts
and a torn uniform on a jagged edge of the external railings of the property before she climbed the
stairs to the accident scene.

Advise Jacob, Wanda, Tony and Gloria.

Suggested Answer

The facts in question relate to the discussion of Occupier’s Liability. On the facts, it appears that injuries
have been sustained due to the dangerous state of premises. To recover compensation, parties involved
must establish liability under either Occupiers Liability Act 1957 (OLA 1957) or OLA 1984.

Briefly looking at the scenario, it is deciphered that the injuries were caused by the state of premise
therefore s1(1) both Acts will be satisfied. Furthermore, the defendants namely Arjun, Patrick & Sally
were all “occupier” who may be sued under s1(2) of both Acts. Noted in Wheat, it is submitted that they
all have the necessary degree of control to be considered occupiers. Additionally, it is also submitted
that the place of injury does amount to a premise therefore s1(2) OLA 1957 & s1(3) OLA 1984 will be
satisfied.

Fourthly, it has to be determined if the claimant is regarded as a lawful or unlawful visitor. S1(2) OLA
1957 provides that visitors are those who have the permission or invitation of the occupier and visitors
include those who would, under common law be deemed lawful entrants. In Anderson it was held that
an occupier may restrict or limit his visitor’s rights to and use the premise, by giving adequate notice
that the visitor is not permitted to enter beyond a certain a point in the premise. s2(6) OLA 1957 states
that those who enter premises under the exercise of a right conferred by law must also be accepted by
the occupier as his lawful visitor. S5(1) OLA 1957 provides that a person entering the premise pursuant
to a contract, in order to carry out a contractual obligation under the same contract, would be owed a
duty as a lawful visitor.

On the facts, Jacob being a delivery man would be noted to be a lawful visitor. Gloria on the other hand
who was the paramedic that was called to the scene would also be regarded as a lawful visitor and thus,
their claims will be discussed under OLA 1957. Wanda’s parents may argue that Wanda should be
regarded as a lawful visitor since she was accompanied by her parents who were dining in the restaurant
when the injury occurred, however, the defendants will dismiss their argument by saying that they could
have expected Wanda’s parents to be more diligent by ensuring that Wanda played within their visibility
as they both would have ought to have read the signs upon entering. In the circumstances, it is
submitted that restriction was sufficiently communicated and as such, Wanda will be regarded as a
trespasser. Additionally, Tony, the thief will automatically be regarded as a trespasser as well and both
their claims will be discussed under OLA 1984.

The claimant’s claim for each party will now be considered individually.

Jacob

As submitted above, Jacob is regarded as a lawful visitor. S2(1) OLA 1957 provides that the occupier
owes the visitor the same common duty of care except in so far as he wishes to and does limit, modify
or exclude his duty. The facts do not stipulate that the defendants have in any way attempted to exclude
liability, as such Jacob would be owed a duty. This is a duty to ensure that the static, physical condition
of the premise is safe (Dunster). In Tomlinson, it was further held that the common duty could include a
duty to also ensure that all activities carried out by the occupier or anyone authorized by the occupier
on the premises are carried out with reasonable care. On the facts, the defendants would certainly owe
Jacob the duty to ensure that he was not injured as a consequence of the loose cable wire on the
external steps to the front door.

S2(2) OLA 1957 further provides that the common duty of care is a duty to take such care as in all the
circumstances is reasonable to ensure that the visitor is safe in using the premise for the invited
purpose. In Darby, the occupier was not liable because the danger was deemed obvious and no steps of
precaution were necessary. Thus, where danger is obvious, little is required for the purposes of
“reasonable care”. Noted in Edwards, the court found that the claimant’s fall from the ornamental
bridge was no more than an unfortunate accident. The court is only likely to find the occupier in breach
where the visitor is in a particularly vulnerable position on the premise and where danger is foreseeable
(G4S Care & Justice Services). It is submitted, that the danger in question ie. loose cable wire on the
external steps to the front door is in contrast with the kind of danger seen in Darby and Edwards. Albeit
the injury to Jacob would have been foreseeable to the defendants, Jacob is not a vulnerable victim like
the claimant in G4S Care. Thus, it is submitted that the defendants may be expected to greater care to
meet the reasonable standard and that simply placing signs warning patrons to be careful when on the
steps probably falls below the reasonable standard.

S2(4) OLA 1957 states that an occupier may discharge his duty by giving warning of the danger, provided
the warning is sufficient to keep the visitor safe. The defendants may want to rely on this provision
arguing that they did inform the visitors to be careful when walking on the external steps to the front
door. However, whether this sufficient in the circumstances to keep Jacob safe is doubted. In Rae, it was
held that exceptional danger requires greater steps of warning such as placing barriers. It may be argued
that the defendants could at least have placed ropes warning visitors to be diligent when on the steps.
Having failed to do so, it would appear that the defendants did not discharge their duty adequately.

In the circumstances, the defendants are likely to be found in breach. However, they may raise the
defence of contributory negligence arguing that Jacob had failed to take reasonable care for his own
safety. S2(3) OLA 1957 provides that in determining the degree of care that can be expected of the
occupier, it is relevant to take into account the degree of care that a visitor can be expected to take for
their own safety. It is possible to note that Jacob was in a hurry to deliver the parcel and it is possible
that he may have neglected caution on his part when on the external steps to the front door. He may
not have been as careful as he was expected to be and it is arguable that if he was cautioned and
diligent, he would not have lost his footing on the steps and fallen. If the court accepts that his conduct
was contributory negligent, damages may be reduced taking into account his share of fault: s1(1) Law
Reforms (CN) Act 1945. Finally, Jacob may want compensation for his damaged Rolex watch. S1(3)(b)
OLA 1957 allows claims for property damage and as such, Jacob may recover damages for the watch.

Wanda

Wanda being a 3-year-old child and having to trespassed into the prohibited area, therefore her claims
will be dealt with under the 1984 Act. according to s1(3)(a), (b) & (c) OLA 1984, an occupier may owe a
duty only if the occupier knew or had reasonable ground to believe that there was danger on the
premise and that Wanda would come into the place of danger and that the risk was one that needed
protection. Applying Tomlinson, there is reasonable grounds to believe that there may be cables lying by
the cupboard as the place was in the midst of electrical work being done. However, according to the
cases of Keown, Swain & Siddorn, there seems to be a suggestion that there are no reasonable grounds
to think that a child would wander into the storage cupboard as young children can be expected to be
controlled or kept from danger by their parents by drawing an analogy to the case of Phipps in which
parental responsibility to prevent young children from wandering off into dangerous places
unaccompanied by parents. Albeit the risk might be one that needs protection, the requirement for the
occupier to owe a duty to the trespasser as provided by the legislation is that all three provisions of the
Act needs to be satisfied. On the facts, it can be concluded that only s1(3)(a) is satisfied, (c) may be
satisfied but (b) will not be satisfied due to the fact that Wanda is a trespasser, therefore, no duty will be
owed.

Tony

Tony’s claims will also fall within the ambit of the 1984 Act as he is regarded to be a trespasser.
However, noted in Ferguson, both Arjun and Patrick would not have known and do not have control of
those live wires therefore, it highlighted that Sally would be the more appropriate occupier.

As discussed above, it must be shown that Sally satisfies all three requirements of s1(3) 1984 Act.
Additionally, applying the principles from the case of Platt, Tony’s presence was not known and there
are no reasonably grounds to believe he would be in the vicinity of danger. However, cases such as
Swain, Donoghue & Rhind seems to suggest that if there were notices that was in placed and claimant
ignored those notices, then no duty will be owed to Tony.

Gloria

On the facts, it is understood that Gloria’s injury is due to the external jagged edge of the railings
therefore, Patrick being the owner will be regarded as the occupier.

As submitted above, Gloria is said to be a lawful visitor as she exercised her right conferred by law to be
treated as a lawful visitor; s2(6).
As such, Gloria would be owed a duty and the standard of care is that of reasonableness as discussed
above in s2(1) & 2(2). However, Patrick may argue that Gloria is a skilled worker ie. a person entering to
exercise calling of an emergency. She would therefore ought to have taken care of her own safety
against special risks ordinarily incident to her calling; s2(3)(b). Drawing an analogy to Neame, it is
therefore argued that the risk encountered by Gloria is ordinarily incident to the calling of a paramedic.
The court will be held Patrick to be not liable for her injuries.

Even though property damage is recoverable by lawful visitors as discussed above, the fact that s2(3)(b)
1957 Act is applicable here will prevent Gloria from claiming for her torn uniform.