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Tort - Occupiers Liability II
Lowery v Walker (1911) gives us an example of the type of duty that is owed to strangers and stranglers that make their way onto private poverty. The plaintiff used the defendant’s land as a short cut, the land was usually used as a short cut, and the defendant had taken no steps to prevent it from being used as such. The plaintiff while walking across the land was injured by the defendant’s horse. The defendant knew that the horse was dangerous but despite that had not taken any steps or measures to restrain the horse or have it secured. The plaintiff sued and was successful.
The situation is not too dissimilar to those who have guard dogs like Rottweilers and German Shepherds. Without doubt, these are some of the most loving dogs in the world but they have a tendency to be over protective and are best kept on land that is not open to public. Most owners of these dogs usually post signs to warn friends, visitors, strangers, and stranglers that there is a dog or dogs in the vicinity to prevent them from coming too close to the fence - these dogs are normally kept in an enclosed area.
On the same token strangers, stranglers, visitors, and trespassers also have a duty to ensure that they act in the appropriate manner. For example, if there is a sign posted on the fence saying “beware of dog” please do not try and put your hand on the fence or meddle with the fence because the chances are that you will get bitten. Owners train these dogs to react in the manner that they do for their own safety and protection.
There are also instances and occasions where people tend to aggravate the dog and if you do so and get your hand bitten off don’t blame the owner because no one in their right mind would aggravate a Rottweiler or a German Shepherd especially when there are signs posted all around that clearly say “beware of dog”.
Strangely enough there are some people who can’t walk past compounds that are protected by dogs without aggravating the animal and after that make a complain to the relevant authorities saying that the dog is too vicious. Vicious or otherwise in most instances the dog is just doing what it is trained to do.
The court elaborated on the duty that is owed by strangers, stranglers, trespassers, and visitors in the Calgarth 1927 – when a person is invited into a house to use the staircase they are not invited to slide down the banister. They are invited to use the staircase in the manner that it is normally used i.e. the duty that is owed by any occupier of land is one that is within reason.
In Haseldine v C. A. Daw & Son and Others (1941) the plaintiff was injured when the cylinder gland of a hydraulic lift in a block of flats broke. The lift was examined only the previous day by someone from the company that was contracted to maintain it and the lift was passed fit. The plaintiff sued the owner of the flats who was also the occupier and the courts held that the owner was not liable. In this instance, the maintenance of the lift was contracted to another company that was required to inspect the lift once a month. The accident was not caused by the negligence of the owner or the occupier but rather by the lack of skill exercised by the servicemen that were contracted to ensure that the lifts were in good working order.
In Tomlinson v Congleton B.C. (2004) the defendants had converted a sand quarry into a park that was open to visitors to frequent. The disused quarry included a lake and signs were posted in plain sight disallowing or prohibiting visitors from swimming in the lake, especially because these lakes are normally shallow and the sand below is loose and prone to give way, which is normally the case with pools that occur naturally in disused mines and quarries and these pools are a hazard to swimmers. Despite that some of the visitors did go for a swim or a wade in the shallow waters of the lake.
The plaintiff was a visitor who decided to go for a swim. He dived into the pool but because of the shallowness of the water or the lack of depth, he sustained severe injuries to the neck. The plaintiff sued.
The court held that the council was not liable. The risk was one that was perpetuated by the claimants own actions rather that a failure by the council to take reasonable care and precaution. S2(2) Occupiers Liability Act 1957 – “The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there”.
© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward