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Tort - Occupiers Liability Cases I

Updated on June 28, 2017

In Edward v Railway Executive (1952) the case was decided prior to the enactment of the Occupiers Liability Act 1957; a railway track was used by members of the public to cut across, as a short cut, and the council erected fences to prevent the use of the railway track as a short cut but the fences were repeatedly torn down and the matter was eventually brought before the court. The question that was to be decided upon was whether the council despite repeatedly erecting fences owed those who used the railway track as a short cut a duty of care? The court held that when there are repeated attempts to erect fences to prohibit members of the public from using the railway track as a short cut and those fences are repeatedly torn down, a duty of care did not arise.

In Wheat v Lacon (1966) the plaintiff and her family were staying in a hotel and while her husband was climbing down a particularly steep staircase, he fell down and hit his head on a beam and died as a result. During the trial, according to the evidence that was given, the staircase was narrower than usual and the lightbulb which normally lit the staircase did not work. In addition to that, the handrail was two steps short towards the end of the staircase which meant that the handrail would stop two steps before the end of the staircase and anyone holding on to the handrail would most likely fall especially if the staircase was not lit. The plaintiff sued.

To start with the court had to decide who the occupiers were. The premises was owned by one party but the day to day running of the hotel was in the hands of another party who were also the occupiers. The court held that there could be more than one occupier in a or to a premises.

The plaintiff had brought an action against the owners who though they retained sufficient control of the premises, the day to day affairs with regards or reference to running or operating the premises fell into the hands of the other party. Clearly the fixing of the lightbulb or rectifying defecting lighting fell into the hands of the second party and therefore the plaintiff’s action failed.

In Lewis v Six Continents (2005) the plaintiff fell through a glass window and brought an action against the owners for failing to have bars erected on the outside of the windows to prevent visitors from falling. The court denied the plaintiff’s claim. If the claim was allowed it would mean that bars would have to be placed outside all glass windows to prevent other claims due to similar accidents. The Occupiers Liability Act 1957 only required occupiers and owners of premises to take reasonable care and not anything beyond that.

In Maguire v Sefton Metropolitan Borough Council (2006) the defendants operated a leisure center that had exercise machines for public use. The plaintiff was a paying visitor who used an exercise machine and because the machine was faulty or defective the plaintiff was injured. The maintenance of the machine was contracted to a third party who was under a duty to ensure that the machines were in proper working order. The plaintiff sued.

Because the plaintiff was a paying customer there was a contract between the plaintiff and the defendants and it was held that there was an implied warranty that the machine could be safely used for the purposes that it was intended for.

In Lisa Wardle v Scottish Borders Council (2011) the plaintiff was a 9-year-old girl who climbed on to the rafters of her school playground shelter and was injured when she fell. The court had to determine if a duty of care was owed and the nature of the duty of care.

It was decided that a duty of care was owed under s2(1) of the Occupiers Liability Act 1957 and that duty was similar to the duty of care that was owed in negligence and the question that was to be asked was whether a reasonable person would have acted in the way the defendant did or would have failed to act under the circumstances and if that act or failure to act had led to some type of injury to the plaintiff? The court found in favor of the plaintiff but unlike in other cases that involved children, decided that the plaintiff was contributorily negligent and the damages that were awarded were reduced by half.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward

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