Engage Task 2

PARTIES
● Occupier - Earl
○ An occupier is someone that has ‘sufficient degree of control over
premises’ (Wheat v E Lacon & Co, 1966)
● Visitor - Bertram

Tort
● Occupiers’ liability: not activities on the premises, but where the state of the
premises causes injury (premises defined in s1(3) of the 1957 act).

LOSS:
● Personal injury

DUTY:
● Under s 2(2) of the 1957 Act, the duty is: to take such care as is reasonable in
all the circumstances to see that the visitor is reasonably safe in using the
premises for the purpose for which they are permitted to be there

Breach:
● Standard of care: s 2(2) of the 1957 Act
● Factors in common law negligence - which apply?
○ the nature of the danger (ie hidden or obvious and the degree of
danger);
○ the age of the trespasser (ie adult or child);
○ the nature of the premises (ie how dangerous are they?);
○ the extent of the risk (ie is there a high or low risk of injury?);
○ the cost and practicability of precautions (ie how easy would it be to
remove or reduce the risk and what would such measures cost?);
○ the nature and character of the entry (eg burglar, child trespasser or
adult inadvertently trespassing);
○ the gravity and likelihood of injury;
○ the foreseeability of the trespasser (ie the more likely people are to
trespass, the more precautions must be taken).
● Applied to the facts: Dim lighting, flagstone sticking out →
○ Likelihood of harm: high due to badly lit spiral staircase
○ Magnitude of risk: high, falling down stairs could lead to v serious injury
○ Low cost and practicality of tackling danger (change the light bulb)
● Has he fallen below the standard - is there a breach?
○ Yes: it is not safe
Warnings
● An adequate warning will comply with the duty & thus no breach
(s2(4)(a)(Roles v Nathan [1963])
● Court will consider whether:
○ Nature of the warning
○ Nature of the danger (hidden or obvious?)
○ Type of visitor
● Earl gives a very generic warning ‘Repairs to the castle are in progress.
Visitors should be on guard at all times whilst within the castle or its
grounds. Visitors enter entirely at their own risk’
○ This is very generic
○ The warning iis just about the repairs not the actual issue of the
precluding flagstone is not covered by this
○ In this situation, you would want a more specific warning and you
would want it WHERE the risk actually is

CAUSATION
● Factual causation is satisfied - ‘but for’ the state of the premises, the visitor
would not have suffered these injuries (Barnett)
● Legal causation is satisfied - There are no intervening acts.

REMOTENESS
● Type of injury is reasonably foreseeable - Wagon Mound no.1

DEFENCES

● Voluntary assumption of risk (s2(5): must know precise risk and willingly
accepted the legal risk – warning should detail exact risk
○ The claimant did not know the precise risk of falling on the flagstone .
● Exclusion of liability: a clearly worded notice that covers liability can be valid if
it’s drawn to visitors attention (White v Blackmore [1972])
○ UCTA 1977: covers business occupiers. s2(1): cannot exclude for
death or PI. S2(2): other losses must be reasonable
○ CRA 2015: covers traders (s65). Cannot exclude liability for PI and
death. Other losses are subject to fairness test (s62).
■ CRA applies here because C is not a business and D is a trader/
business
■ Earl might say he was not a trader as it was a charity day -
however, the gift shop and cafe are open for business
suggesting he’s still acting as a trader
■ To exclude liability from personal injury - it has to be
REASONABLE for UCTA, and FAIR for CRA
 ● Arguable that they could exclude liability here for the
camcorder (property damage)
○ Wording of the loss needs to cover the injury to C - it does ‘howsoever
caused’ is the wording of the notice
○ Was it made aware to C? Yes - put at front of castle
● Contributory negligence – usual principles – see main
○ What Bertram was doing? Was he just filming on the camcorder and
not paying attention

REMEDIES: death, personal injury and property damage covered in remedies to

occupier’s liability as a tort. Therefore the broken leg and the broken camcorder will
be covered. Thus the claimant would get damages for both of these factors.

Part B

Conrad

Parties - Conrad v Earl

Loss - Personal injury

Tort - occupiers liability

Duty of care - Visitors on premises s.2(1) 1957 Act - established duty (AC Billings &
Sons Ltd v Riden) - Earl owes an automatic duty of care to Conrad

Occupier: sufficient control over the premises (Wheat v E Lacon & Co [1996]: pub
managers who lodged were occupiers)

Visitor (s2(1) and (4); s2(6) and s5(1): express or implied permission to be on the
occupier’s land – to exceed or enter without permission is trespass - Conrad is a
visitor

In respect of dangers due to the state of the premises (s1(3)(a)). Premises s1(3)(a):
wide definition . Therefore the bridge is a premise .

Therefore, the Earl owes an automatic duty to Conrad .

The earl has sufficient control over the premises - contractor is no longer the
occupier as they are not building the bridge anymore.
Breach of care - standard

Fall below

As long as occupier meets requirements in s 2(4)(b) then they will have discharged
their liability

Work wasn’t done to standard

Causation: but for test satisfied

No defences

Therefore the Earl NOT in breach

Would advise Conrad to sue Isambard Bridging. Higher standard would be expected
of them (Bolam) - would definitely fall below this

Amy

Parties : Amy V Earl

Loss: broken arm, cut and bruises (personal injury)

Tort: Occupier’s Liability - at time of loss, she was trespassing having wriggled
through the railings - 1984 Act (Robert Addie v Dumbreck)

A trespasser is someone who goes upon land without an invitation of any sort and
whose presence is either unknown or objected to (Robert Addie & Sons Ltd v
Dumbreck [1929]) .

Duty of care: owed by the occupier to the non-visitor in respect of source of danger
existing on the premises where all the s1(3) conditions are satisfied. Not automatic

1. All conditions must be satisfied for there to be a duty of care (s1(3)):

The occupier is aware of the danger or has reasonable grounds to believe it - he is

aware - his sign reads ‘danger’

Rhund v Astbury Water Park [2004]: no duty as no reasonable grounds to believe

there was obstruction in l

He knows or has reasonable grounds to believe the other may come into vicinity

Donoghue v Folkestone Properties Ltd [2003]: no duty as no reasonable grounds to

believe a trespasser would swim of Folkestone harbour in winter and at night
The risk is one which, in all the circumstances, he may reasonably be expected to
offer the other some protection which involves the nature and extent of risk:
hidden/fatal need protection

- Type of trespasser: child/inadvertent need protection and Cost and practicality

of precautions

We have an issue with the state of the premises here

Breach of duty (s1(4)): such care as reasonable for reasonable occupier to ensure
non-visitors safety (less onerous than 1957 Act)

Fallen below:

- Well uncovered
- Obstacle - railings - ineffective
- Flower beds alluring (Glasgow Corporation v Taylor) - well could be alluring
too

HOWEVER - Earl had put up specific warning, but this is inappropriate for a child -
signs are not sufficient warnings for children - would require a higher standard of
care

- Children need a higher standard of care but not specially mentioned within the
Act - (Glasgow Corporation v Taylor) & (Phillips v Rochester Corporation)

Causation: ‘but for’ test - satisfied

- But for the failure to cover the well there will not be the injuries caused.
- No intervening acts, remoteness is fine

Defences: none . . contributory negligence - they are too young as they are a minor .

WOULD BE BREACH - cheap cost to cover

Eric - Rolex

Parties:
Claimant (Occupier) - Earl
● An occupier is someone that has ‘sufficient degree of control over premises’
(Wheat v E Lacon & Co, 1966)
Defendant (Trespasser) - Eric
● Trespasser is ‘one who goes upon land without invitation of any sort and
whose presence is either unknown to the proprietor, or, if known, is practically
objected to’ (Robert Addie & Sons (Colliery) Ltd v Dumbreck (1929)
Tort:
Negligence under occupiers’ liability

Loss:
● Personal injury (broken back)
● Property damage (watch)

Duty of care:
Under the 1984 Act there is no automatic duty to act. Rather an occupier has a duty
to care for a trespasser if they satisfy the conditions in s1(3)
● O knows or has reasonable grounds to believe a danger exists (subjective) -
s1(3)(a) - Put the fence up
● O knows or has reasonable grounds to believe trespasser is in vicinity of
danger or that they may come into the vicinity of danger (subjective) - s1(3)(b)
- Previous break ins so knew trespassers were common in vicinity
● O may reasonably be expected to offer some protection against the risk -
s1(3)(c) - He could have put a sign up giving danger of death
○ Courts will consider:
■ Nature and extent of the risk
■ Type of trespasser
■ Cost and practicality of precautions
● Conc: Earl does have a duty of care

Breach of duty:
● s1(4): the occupier must take care as is reasonable in all the circumstances to
see that the trespasser does not suffer injury on the premises by reason of the
danger concerned. So an occupier will be liable if they fall below the standard
of a reasonable occupier.
● Factors to consider for reasonable care:
○ Nature of the danger - it’s possible that the danger is hidden if it’s at the
top of a high wall without warning
○ Extent of the risk - very high, electrification from a high point
○ Foreseeability of the trespasser - there have been lots of break-ins so it
is likely a trespasser will encounter this danger. Therefore more
precautions need to be taken
○ Warnings:
■ s1(5) of the 1984 Act:
● warning must be adequate for occupiers to avoid liability
● Discouragements might be put in place e.g an obstacle
as well as a warning
■ No suggestion that there is a warning for trespassers that there
is an electric fence at the top of the wall.
● Has the duty been breached? XXX
Causation:
● Satisfied - but for the occupiers’ breach, Eric would not have suffered
personal injuries and damage to his property
● Legal causation satisfied - no intervening acts

Defences:
● Illegality does not apply to claims under 1984 (Revill v Newbery)
● Contributory negligence applies:
○ Eric was highly careless in scaling the wall (objective)
○ This contributed to the damage (he fell from the wall)
● Volenti probs not applied:
○ If Eric is aware of the risk of the electric fence then the Earl can avoid
liability completely (Ratcliff v McConnell and another) - Don’t think he
does know that

Oliver

Parties:

Oliver (Trespasser (claimant)) v The Earl (Occupier (defendant))

Tort: Occupiers Liability

- Most likely due to state of premises, Earl will argue due to activity (but there
were rabbit holes etc)

Loss: Personal Injury - collarbone

Duty: Under the 1984 Act there is no automatic duty to act. Rather an occupier has a
duty to care for a trespasser if they satisfy the conditions in s1(3)

a) Is aware of the danger or has reasonable grounds to believe that it exists;

(he had fenced off the mounds so he must have known)
b) Knows or has reasonable grounds to believe that the trespasser is in the
vicinity of the danger concerned or that they may come into vicinity of the
danger; and (not really sure - not sure if they had trespassers before)
c) May reasonably be expected to offer the other some protection against the
risk (considering all the circumstances of the case) → could have cut the
grass and put a signup warning)

→ These requirements are met, so he does owe a duty of care.

→ Extent of duty of care: “To take such care as is reasonable in all the
circumstances of the case to see that the [non-visitor] does not suffer
injury on the premises” (s1(4))
Breach:
● Did he fall below the standard of care?
● what constitutes ‘reasonable care’ for whether an occupier has breached the
duty owed to the trespasser, the court will consider all the circumstances of
the case eg:
○ the nature of the danger;
○ the age of the trespasser (they were teenagers);
○ the nature of the premises;
○ the extent of the risk;
○ the cost and practicability of precautions (probably would be quite
easy/ cheap to fix);
○ the nature and character of the entry (eg burglar, child trespasser or
adult inadvertently trespassing);
○ the gravity and likelihood of injury;
○ the foreseeability of the trespasser.
● Yes he fellow below:
○ He had allowed the grass to grow fairly long so perhaps they couldn’t
see the rabbit holes
● Children: are teenagers so you need to consider whether the fenced off area
would be seen as an allurement to them (Glasgow Corporation v Taylor).
● s1(5) - warnings and discouragement
○ Where a warning inadequate to protect a trespasser from danger, an
occupier should therefore put an obstacle - he had fenced off the
mounds

Causation

● Factual Causation - But for the holes in the field, Oliver would not have broken
his collarbone (Barnett)
○ There is a discussion here about whether they would have been
mucking around on the boards regardless
● Legal Causation - There are no intervening acts
● Remoteness - The type of injury is reasonably foreseeable as the area was
already deemed hazardous to walk along, so seeing teenagers mountain
board poses a type of harm that is reasonably foreseeable (Wagon Mound
No1)

Defences

● Contributory negligence - trespassers who are injured due to their own

carelessness and partly due to an occupier’s breach of duty. The teenagers
were using the land with no regard for possible dangers despite the fence
surrounding it, evidently to keep people off the land. If the Earl can prove
 contributory negligence then under S1(1) of the Law Reform (Contributory
Negligence) Act 1945, Oliver’s damages could be reduced in comparison to
his contribution.
● Volenti s1(6) - the common law defence of voluntary assumption of risk is
preserved for claims, this may not apply as the claimant may have arguably
been aware of the risk of mountain boarding in the field since it had been
fenced off. So if they could prove that Oliver was aware of the risk then the
Earl could rely on the defence of volenti under the 1984 act and subsequently
escape liability (Ratcliffe v McConnel and another).

REMEDY