UOL 2019 Tort Zone B Question 3

Freeway, a large supermarket, has two entrances, one at the norther, the other at the south end of the
building. On the glass doors of the north entrance there are two small notices at eye level. One reads
“Freeway regrets it cannot accept liability for any physical injury suffered on these premises”. The other
reads “Beware slippery floors”. Abby and her children Ben, aged two, and Cathy, aged four, enter by the
north entrance, which is congested at the time. Wayne is employed by Freeway as a shelf-stacker and
arrives for work by the south entrance.

Before Abby begins shopping, she puts Ben into the seat of a new “Tots Trolley” designed especially for
children. Sometime later Abby realizes that Cathy has wandered off but she continues shopping.
Meanwhile Cathy has found her way into the storage area at the back of the store in a storage area
market out by a single rope one meter high on which hangs a sign which reads “No entrance”. In this
storage area, Green & Sons are laying new floors.

Cathy begins to play with loose tiles which she pulls off the still-wet floor. At the sound of smashing tiles,
Wayne looks across and sees Cathy playing amongst broken tiles. He rushes towards the entrance of the
storage area to remove her, but slips on the wet floor. Wayne suffers extensive injuries and his suit is
badly torn. Abby, hearing the commotion and seeing that Cathy has cut her hands, quickly pushes the
trolley towards the scene. As she enters the storage area, the trolley topples over and Ben is injured.

Advise the parties.

Suggested Answer.

The facts in question relate to the discussion of Occupier’s Liability. On the facts, it appears that injures
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) of both Acts will be satisfied. Furthermore, the defendants namely Freeway; Green &
Sons (G&S) will be regarded as “occupier” who may be sued under s1(2) of both Acts. Noted in Wheat, it
is submitted that they 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 his visitor’s rights to and use the premise, by giving adequate notice that the
visitor is not permitted to enter beyond a certain point in the premise. 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, Wayne is an employee of Freeway therefore he would be a lawful visitor. Given that Ben
was placed in the trolley and had fallen off when Abby had rushed to the storage area, he too would be
regarded as a lawful visitor, therefore, both Wayne and Ben claims will be discussed under OLA 1957. On
the other hand, it appears that Cathy though being a lawful visitor at the time of entrance, however, it
has been noted in Harvey that unlawful acts on the premise could convert the status of lawful to
unlawful visitors. Besides, Cathy did not have permission or invitation to go into the storage area
moreover to play with loose tiles at the storage area, therefore she is regarded as a trespasser and her
claims will be discussed under OLA 1984.

The claims for each claimant will not be considered individually.

Cathy

Cathy being a 4-year-old child and having to trespassed into the prohibited area, therefore her claims
will be dealt under the 1984 Act. According to s1(3)(a), (b) & (c), 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
Cathy 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 broken tiles or other sharp objects
in the storage area as the place was in the midst of renovation. 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 area 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. Although 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 Cathy is a trespasser, therefore, no duty will be owed.

If at all the courts take the contrary view, then s1(4) OLA 1984 provides that the duty is to take such care
as is reasonable in the circumstances to see that the non-visitor is not injured by reason of the danger
concerned. The danger in Platt was that of a house that was about to collapse, and in comparison, the
broken tiles in the storage area posses hardly a fraction of the danger posed by the house in Platt.
Reasonable precaution in Platt would require extensive measure. The extent of precaution necessary
presently will be much less comparatively.

S1(5) OLA 1984 provides that duty owed may be discharged by taking steps such as giving warning of the
danger concerned or discouraging persons from incurring the risks. On the one hand, it can be argued
that reasonable care in the circumstances would probably have required more precaution on G&S part
such as closing of the storage area altogether. It would seem as though placing a one-meter high notice
at the entrance to the storage area would be insufficient and unreasonable in the circumstances taking
into account that some of the patrons to Freeway will be young children. Alternatively, it can also be
argued that OLA 1984 only requires defendant to discourage persons from incurring the risks an that
G&S did so by placing the notice at the entrance. It is also as submitted above that parental
responsibility plays a role by ensuring that their kids do not wander off.

As such, it is concluded that Freeway and G&S will not be liable for the injuries sustained by Cathy.

Ben

As submitted above, Ben 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, Ben 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 with a reasonable care. On the facts, the defendants
would certainly owe Ben the duty to ensure that he was not injured as a consequence of falling from the
trolley.

Furthermore, s2(3)(a) OLA 1957 provides that an occupier must be prepared for children to be less
careful than adults. It is important to note, that the allurement principle in Glasgow Corporation would
not be applicable here, rather the application of Lowery in that there was an implied licence for Abby &
Ben to be at the prohibited area upon knowing of the commotion.

Additionally, Freeway may argue that it was the presumption of uneven flooring at the storage area that
caused the trolley to topple, however, the courts will refer to s2(4)(b) 1957 Act by applying the case of
Woodwarth, in that the more complex the task, the more likely that the occupier would be able to show
that reliance on the independent contractor skills absolves liability. Therefore, though the uneven of the
flooring had caused the trolley to topple, it is inadvertently noted that the trolley belonged to Freeway.

Nevertheless, as submitted above it will be held that the defendants would not be liable for the injuries
sustained by Ben.

Wayne

On the facts, it is understood that Wayne’s injury is due to the fall he sustained whilst trying to remove
Cathy, therefore, Freeway being the employer of Wayne will be regarded as the occupier.

As submitted above, Wayne is said to be a lawful visitor as he was in the building pursuant to a contract;
s5(1) OLA 1957.

As such, Wayne would be owed a duty and the standard of care is that of reasonableness as discussed
above in s2(1) & 2(2). However, Freeway may argue that Wayne is a skiled worker ie. a person who
works there and was acting as a rescuer at the time, and hence, he can be expected to guard against his
own actions; s2(3)(b). Drawing an analogy to Neame, it is therefore argued that the risk encountered by
Wayne as a shelf stocker is foreseeable for him to fall however, the courts will distinguish this due to the
fact that Wayne was acting as a rescuer at the same time. Therefore, Freeway is likely to be liable for his
injuries.

However, Freeway will raise the defence of volenti provided by s2(5). Unfortunately, noted in White, the
defence of volenti is only applicable if it can be shown that the claimant had willingly accepted the risks
involved. On the facts, Wayne had not willingly accepted the risks, rather he had acted out of necessity
therefore, the defence of volenti will not avail Freeway.

As such, Wayne is advised that he is able to further claim for compensation for his torn suit. S1(3)(b) OLA
1957 allows claims for property damage and as such, Wayne may recover damages for the torn suit.