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Tort - Occupiers liability cases IX

Updated on July 13, 2017

In Perry v Harris (2008) we are once again confronted with a situation where an occupier has organized a gathering on his or her premises and has either equipment that the visitors can use or has shows for the benefit of the visitors along the lines of Gwilliam v West Hertfordshire Hospital NHS Trust (2002) and Bottomley v Todmorden (2003).

In this instance, the defendants organized a party and the children in attendance were allowed to use a bouncy castle. The plaintiff aged 11 years old was injured, while using the castle, when one of the bigger boys decided to get into the act. The plaintiff sued. The court decided that the injury that the boy sustained was not a result of the defendants’ negligence but rather that of the parents.

While it is impossible to impose a duty on parents to supervise their children all the time, imposing such a duty would be contrary to public policy, it was, on the other hand, reasonable to expect parents to supervise their children in instances or in situations where they are likely to incur or sustain some form of injury especially during play.

It was foreseeable that other children would also use the castle and while they were playing, it was likely that some injury might befall the children if the parents did not take proper care and caution. The plaintiff was unsuccessful.

In Mann v Northern Electric Distribution (2010) the plaintiff a 15 year old boy suffered severe burns and sustained serious injuries when he climbed a fence around a electricity substation to retrieve a football.

The court once again had to decide on the duty that is owed to a trespasser as per s(1)(3)(b) of the Occupiers Liability Act 1984 and as we have seen thus far there are two elements that a trespasser has to satisfy before he or she can be successful in a claim.

The first question that is to be asked is, is it reasonable to impose a duty on the occupier under the circumstance? and this then leads us to the next question, in that, could the defendant have anticipated the actions of the trespasser?

Accordingly, the court held that it was not reasonable to impose a duty on the defendants under the circumstances and the defendants could not have anticipated the risk or the injury that followed when the plaintiff undertook the risk.

In Harvey v Plymouth County Council (2010) the plaintiff, aged 21, who was drunk at the time crashed into a fence and fell down a slope and as a result sustained serious injuries.

The property belonged to the council and despite fencing the area close to the edge of the slope off, it had neglected to maintain the fence and as a result the fencing had deteriorated. The grounds were frequently used for recreational purposes and there was an implied license that allowed visitors to use it for recreational activities.

S2(2) of the Occupiers Liability Act 1957 defines the scope of this license. “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”. The plaintiff sued.

The court held that the defendants were not liable. The duty to visitors existed only in so far as the land or the property was used in the manner which it was intended i.e. in this instance for recreational purposes and since the land or the property in question was not used for the purposes that it was intended therefore no duty existed.

In McCarrick v Park Resorts (2012) the plaintiff dived into a swimming pool but because of insufficient depth sustained serious injuries and subsequently became a tetraplegic. The plaintiff sued. The plaintiff’s argument was that there were no visible signs posted that warned him of the dangers of diving in the pool or that indicated that the pool or the area of the pool that he was diving in was shallow.

The court found in favor of the plaintiff and decided that signs that were posted to warn visitors of any dangers should be done so in a manner that was plainly and clearly visible. To do otherwise would defeat the purpose. The court however reduced the damages that the plaintiff received by one third because it found that the claimant was contributorily negligent.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward

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