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Tort Q&A Question Ali, a 17-year-old boy, decides one day to break into a local abandoned warehouse. The owners moved out several years previously to new premises, and secured the premises before they left. In order to enter the warehouse, Ali has to remove a heavy metal grill using some tools. After living in the warehouse for a few days, Ali has had a chance to explore the warehouse thoroughly, noticing that the back balcony attached to the rear of the warehouse is rusted and rickety.Ali decides to host an illegal rave, and invites a number of local teenagers to it.The party is in full swing when one of Ali’s friends, King, decides to go out for a smoke. He is on the upper level of the warehouse, and sees the door to the back balcony. He walks onto it, and under his weight it collapses. He falls from some 10ft, a breaks his leg. His friends cart him off to hospital. Ali finds it annoying to have to walk all the way through the warehouse to get to the upper level, and tells another friend, Jimbo, that there are some old wooden ladders lying about next to the warehouse. Ali has tried to use one of these ladders once before despite them being chained up and labelled with a large sign ‘do not use – for waste only.’ Ali broke the chain, discarded the sign, and tried to use one of the ladders - it broke under his weight. Jimbo sets up the ladder where the balcony used to be, but whilst climbing up the ladder breaks, and Jimbo falls, breaking her arm. Having just arrived back from taking Kyle to hospital, Jimbo too, is taken away. Outside of the warehouse is a large pit, used to dispose of industrial waste. It is unfenced and not signposted. In an effort to take the perfect selfie, another partygoer, Faizal, steps backwards and falls over the edge, he dies from the fall, but nobody discovers him until the day afterwards. Having not heard from Faizal the day after, his parents eventually call the police, who discover his body in the waste pit after investigating his whereabouts. The police note in their report that they have seen teenagers hanging around near the pit before – it is a popular meeting place. They have spoken to the owners about repairing the external fence to stop these gatherings from occurring, but nothing has come of it.

Answer Occupier, as defined by Lord Denning in the case of Wheat v Lacon & Co Ltd, is someone who has the immediate supervision, control and power of permitting or prohibiting the entry of other persons. Similarly defined in the case of Harris v Birkenhead Corporation where a local authority had acquired a house of which was left vacant and vandalised. A child had entered the house and was injured. The court held that the defendant had statutory rights to take possession over the premises and therefore were the occupiers of the property. Therefore in this issue, the warehouse though abandoned is still under the ownership of the previous owners and they are still considered the occupiers. Visitor on the other hand, is a person coming lawfully to the premises. Therefore, if the person comes unlawfully, they are regarded as trespassers. Trespasser is a person who enters premises without any express or implied permission of the occupier. The existence on the premises may not be known.

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Premises are all forms of buildings, landscapes, vehicles (can be tractors), structures such as scaffholding, ladders, walls, pylons and grand stands. In this case, the warehouse and the objects inside, including the area in which the owner has control, is the premise. To summarize the facts of the case, King fell from a rusty balcony of the warehouse and broke his leg. Jumbo fell from a broken ladder and broke her arm where he sets up where the balcony used to be. Faizal fell to his death into an unfenced and not signposted pit outside the warehouse. Introducing the parties to this case are King, Jimbo and Faizal against the occupier of the warehouse. The main issue is whether the occupier is liable for the injuries suffered by the trespassers? It is convenient to consider first whether the balcony, ladder and pit belonged to or considered as part of the premise. Based on the definition of ‘premises’ and the case of Wheeler v Copas, the plaintiff borrowed a ladder from the defendants. The ladder was broken and the plaintiff was injured. The court held the defendant liable as the ladder constituted premises. Therefore, based on this issue, the ladder, balcony and pit iis part of the premises and under the occupier’s liability. Inititally, occupiers do not owe a duty to a tresspasser as they had entered without permission and is therefore assumed to have accepted all risks and any danger there might be on the property (Robert Addie & Sons Ltd v Dumbreck). However, it was overruled by British Railways Board v Herrington, when a 6-year-old entered a piece of land which was open to public and frequented by children. He ran over an electrified railway and was severely injured. House of Lords held that occupiers must take reasonable steps of common humanity and common sense to avoid danger, including for the trespassers. Therefore, the occupier in our case do have a duty of care towards trespassers, although they are lower. The reasonable steps may be by giving a warning to a potential danger, even though the duty is lower than the duty owed to invited visitors. The level of standard of care decreases from contractual entrants to invitees, to licencees and finally trespassers. Referring back to the case of British Railways Board v Herrington, Lord Reid states that an occupier’s duty to trespass must vary according to his knowledge, ability and resources. It is also considered whether the occupier can reasonably expect that there was a substantial probability that trespassers would come and he might reasonably think, weighing the seriousness of the danger and the degree of likelihood of trespassers coming against the burdenn he would have to incur in preventing their entry or making his premises safe. What is ‘reasonable’ here can be referred to Lord Wilberforce where it depends on the nature and degree of the danger. It also depends on the difficulty and expense of guarding against it. The law takes into account of the means and resources of the occupier’s knowledge of the danger on his premises according to his own financial limitations. To summarize, in order to determine whether the duty is fulfilled, the following factors need to be taken into account; expertise, financial standing and knowledge by the occupier of the trespasser as possible presence on his premise. In applying the principles to the case, I would like to argue that the occupier does indeed has knowledge of the possible presence of the trespasser on his premise. We can refer to the last facts of the case where, “The police note in their report that they have seen teenagers hanging around near the pit before – it is a popular meeting place. They have spoken to the owners about repairing the external fence to stop these gatherings from occuring, but nothing has come of it.” In the case of Sathu v Hawthornden Rubber Estate, the plaintiff’s cattle had strayed on the defendant’s land of which he had sprayed weed 2

killers. The cattle died after grazing on the grass there. The court held that the defendant could not reasonably foresee the plaintiff’s cattle from entering his land and therefore held liable. Contrasting our current issue with the cases, the presence of teenagers hanging around the area of the premise is reasonably within the knowledge of the occupier as they have already been told by the police and advised to repair the external fence. While in the case of Sathu, it was not foreseen that the cattle would have strayed onto the defendant’s land. The decision then would be different in the Sathu case if the defendant had already been advised to put up fences due to the cattles straying. This confirms that the trespassers’ presence on the premise was foreseen as opposed to the Sathu case and that there is a possibility that the occupier may be held liable. Furthermore, in proving the occupier has a good financial standing, they own two premises, or more as of the phrase, “The owners moved out several years previously to new premises.” Only those of a good financial standing can afford to have more than one premise at a time. Lastly, is the question of ‘expertise’. It is plainly obvious from the fact that the occupier owns a warehouse, which, has tools within their reach to have expertise in repairing the external fence, as spoken by the police. They could have fixed the fence to keep out the trespassers but they have failed to secure the premise in preventing them. Therefore, the occupier’s duty towards the trespassers are high in relation to the pit. Referring back to Lord Reid, “...reasonably think, weighing the seriousness of the danger...”. The pit is dangerous enough to cause someone fall to his death. The occupier also did not put any warning sign or signpost. In the case of Glasglow Corporation v Taylor, a sevenyear-old boy had died eating berries in the defendant’s compound. The court held that an occupier who is aware that something in his land might be an allurement to children should take greater steps to prevent the risk from manifesting. While the parties in our case are not that of children, what can be compared here is the ‘allurement’. A dangerous pit that is not fenced or be warned with a signpost is an ‘allurement’ in which trespassers may wander around and be caught in a deadly accident. Similarly, the occupier of the warehouse need to take greater steps to prevent the risk, after reasonably weighing the seriousness of a fall into the pit, from manifesting – which, in this case, are to put up fences together with a signpost. I base my argument primarily the occupier’s duty as stated by Lord Reid and Lord Wilberforce in British Railways Board v Herrington, that the occupier indeed as a high duty in keeping his premise safe in regards to the pit, as it has high seriousness of danger and that he has fulfilled the factors of expertise, financial standing and knowledge of possible presence of trespassers. To conclude, the occupier may be held liable for the death of one of the trespassers who fell into the pit, Faizal. Another party that may use the same argument as the one of Faizal is Jimbo. The facts are so well known that it is unnecessary to do more than recall that Jimbo had climbed an old ladder which broke and caused him to fall and injure himself. What is difficult to ascertain here is whether it is material whether Jimbo was aware of the sign and chain provided by the occupier to inform the danger – as they have been discarded by Ali who used it previously. In a reference to the Southern Portland Cement Ltd v Cooper, the occupier cannot owe a duty to prevent dangers which has arisen without his knowledge. Therefore, since Ali had broken the chain and discarded the sign, the occupier does not owe the duty anymore since it happened without his knowledge. Referring to Lord Reid again, the sign and chain are reasonable enough to warn of the danger. It is also argued that the notice is a complete defence – just as an exclusion clause. The existence of a notice of warning may be raised by the occupier to show that he has not breached his duty, provided that it is 3

clear and sufficient (Ashdown v William Samuel & Sons). Therefore, the occupier has performed his duty. To conclude, the occupier is not liable for the injury the befall on Jimbo. However, I would like to argue differently for the injury the befall on King. It is argued in the case of Southern Portland Cement Ltd v Cooper that it is unjust to subject the occupier to the full obligations resulting from the neighbourhood principle. Secondly, no unreasonable burden must be put on the occupier. He cannot owe a duty to prevent dangers which has arisen without his knowledge. Therefore, for dangers which he has knowledge but did not create, he cannot be required to incur what would for him be a large expense. If he creates the danger and he knows that trespassers might come onto his land and not be aware of such danger, he must do more. Generally, the more serious the danger, the greater the obligation to avoid it. The rusty, rickety balcony is a danger in which the occupier knows but did not create. It is unreasonable for him to renew the balcony to ensure the safety of trespassers, or thieves, in that matter – as it requires difficulty and expense of guarding against it. Even though the occupier may be that of a good financial standing, no unreasonable burden must be put on the occupier. Asides that, the danger that can caused by the balcony is also less serious and it is easy to be aware of such danger. Referring back to the phrase in the question, “Ali noticed the back balcony attached to the rear of the warehouse is rusted and rickety,” this shows that a trespasser was aware, and that the danger is easily to be aware of. I base my argument on the case of Staples v West Dorset District Council, where the claimant was injured when he slipped from a wall of a harbour when trying to take a photo. The court held that there were no requirements to warn the claimant as the danger of slipping is obvious. Therefore, it is not a requirement for the warehouse owners to add a notice or block the balcony as the main entrance of the warehouse. Referring back toSouthern Portland Cement Ltd v Cooper, the extent of the occupier’s duty is based on considerations of humanity – that is, the determination of what would have been the decision of a humane man with the financial and other limitations of the occupier. Renewing the balcony is unreasonable, for they have moved out to other premises. For the reasons that the balcony is clearly rusty, and was made aware by the trespassers by the obvious condition of it, supported by the fact that they are breaking into a warehouse that has been ‘abandoned’ and therefore already assumed the risk of injury – there is a high possibility that the occupier is not liable for the injury the befall on King who fell from the collapsed rusty balcony. The defence available for the occupier is volenti non fit injuria. In conclusion, the owners of the warehouse are not liable under occupier’s liability for the injuries of Kyle and Jimbo, but may be partly liable for the death of Faizal as it was one of a contributory negligence.

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