Defences and Remedies - tort PDF

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Notes which I did on my own for revision purposes. I got a First Class degree ...

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Defences and Remedies (Defences to the occupier) 1) Contributory negligence – the visitor/ trespasser contributing to the negligence; the proportion of damages is reduced. 

Lawful visitor:-

S. 2(3) OLA 1957: The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor. In considering whether an occupier has breached his duty of care, the courts may take into account the degree of care which a reasonable visitor can be expected to show for their own safety 

Unlawful visitor:-

S.1 (1) Law Reform (Contributory Negligence) Act 1945: Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.

2) Volenti Non Fit Injuria - The defence of volenti non fit injuria requires a freely entered and voluntary agreement by the claimant, in full knowledge of the circumstances, to absolve the defendant of all legal consequences of their actions. 

Lawful visitor:-

S. 2(5) OLA 1957: The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor. 

Unlawful visitor:-

S. 1(6) OLA 1984: No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person. Geary v Weatherspoons [2011]: The claimant attempting to slide down the banister at the defendant’s premises, fell causing a spinal fracture. She claimed in negligence and occupiers’ liability. Despite being aware that there was an obvious risk of falling, the claimant had decided to take that risk. She knew that sliding down the banisters was not permitted. She was therefore the author of her misfortune. Defendant owed no duty to protect her from such an obvious and inherent risk. That is, if a visitor takes risks willingly, no duty of care is imposed.

Warnings 

Lawful visitor:-

S. 2(4) (a) OLA 1957: If an occupier has given a visitor sufficient warning of danger to render the visitor reasonably safe, the occupier will not be liable for any damage suffered by the visitor as a result of that danger. Where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe. 

Unlawful visitor:-

S. 1(5) OLA 1984: Giving a warning of the danger, or taking reasonable steps to discourage trespassers from encountering the danger will be sufficient to discharge the duty.

Additional warning for unusual risks: Where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe. RAE v Mars [1990]: It was held that where danger is extreme or unusual, it not enough for there to be a warning; a barrier or additional notice should be placed.

Reasonableness of giving no notice: Darby v National Trust [2001]: Claimant’s husband drowned in a pond owned by the National Trust. The pond was unsuitable for swimming because it was deep in the middle and the edges were uneven. The claimant said that the National Trust should have made it clear that swimming in the pond was not allowed and should have taken steps to enforce the prohibition. The court held that the risk from drowning in a small pond is obvious, and no warning should be required. The owner’s negligence in not erecting a warning sign is irrelevant where this was not in fact a cause of the death.

English Heritage v Taylor [2016] – (OLA 1957): The claimant suffered a serious head injury when he fell down a sheer drop at one of the defendant’s sites. The central issue was whether the defendant had breached its common duty of care under s2 OLA 1957 by failing to have a warning sign or whether it was an obvious danger for which adults required no warning. At first instance the recorder held that the defendant had breached its duty of care by failing to have a warning sign but also made a finding of 50% contributory negligence against the claimant. This decision was appealed by the defendant on the grounds that the recorder had erred in his approach and also that the finding was contrary to the public interest. This appeal was dismissed. The court reiterated the principle that adult visitors did not require warnings of obvious risk except where they did not have a genuine and informed choice. There is no duty on occupiers of land to warn visitors about dangers which are perfectly obvious, stating that: “for example, it is unnecessary to warn an adult of sound mind that it is dangerous to go near the edge of an obvious cliff”.

Councils are not always liable for accidents on their property: Edwards v Sutton LBC [2017] – (OLA 1957): The claimant was traversing a small, humpbacked bridge over running water. The bridge existed since long ago and had little in the way of side protection. The claimant was crossing the bridge on foot whilst pushing his bicycle. The claimant lost his balance and fell over the edge into the water below. He suffered from very serious injury. At first instance, the court found that there was a breach of the OLA 1957 and the council was found liable in respect to the injuries sustained by the claimant. The judge held that there was a foreseeable risk of injury and therefore considered that there was an obligation to warn visitors as to the risks of the law parapets. The court of appeal found that the first instance judge had misdirected himself, with a failure in the original decision to recognise that under the 1957 Act it is necessary to first identify the relevant danger (if any) before being in a position to be able to do something about it. The low parapets of the wall did not trigger a duty to take further steps. There had been no previous accidents of any kind and any risk, if it existed, was remote. The risk of injury could be regarded as minimal rather than serious. There was no duty to warn of obvious risks - the approach to the bridge was clear, and its width and the height of the parapets were obvious. The CA concluded that ‘…not every accident (even if it has serious consequences) has to have been the fault of another; and an occupier is not an insurer against injuries sustained on his premises’

Exclusion of the common duty of care S. 2(1) OLA 1957: An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise. S. 2(1) UCTA: A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence. If premises are occupied for business purposes, S.2 (1) UCTA prevents occupiers from excluding liability for personal injury or death resulting from negligence. Damages 

Visitor: Duty of care is owed for both personal injury and personal property.

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Trespasser: Duty of care is owed for only personal injury, but not for personal property.

Property damage: No duty is owed to trespassers’ property S.1 (8) OLA 1984....