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Tort - Occupiers liability cases VI

Updated on July 7, 2017

In Rae v Mars (UK) Ltd (1990) it was held that when there are dangers ahead, especially due to poor visibility, there must be sufficient signs posted, notice given or reasonable attempts made to alert a visitor of the dangers ahead.

According to the facts of the case a deep pit was dug close to the entrance, on the inside of a shed, and there was no lighting in the shed and therefore the pit posed a danger to any visitor or trespasser who entered the shed.

The decision is important especially when it comes to children because while adults are under a duty to exercise due care and caution under most circumstances, even when they are walking down the street, the same cannot be said for children and even if they are repeatedly told or warned about the dangers of doing something, there is still a very high possibility or probability that they are going to disregard or ignore those warnings.

Let’s go back briefly to the example of the staircase. It is probable that adults, once they are aware of the law, in respect to climbing up and down a staircase, will exercise due care and caution in doing so but the same however cannot be said for children. Whatever adults decide there is a very high probability that children will do the exact opposite.

In White v The Council of the City and District of St. Albans (1990) the plaintiff had taken a short-cut across the defendant’s fenced-off property and while he was doing so he fell into a trench and as a result sustained injuries. The plaintiff sued on the grounds that the fact that the defendant had erected a fence around his property meant that he was aware that the property was being used as a short-cut and that there were others who used the property and thus the defendant had to take reasonable care and caution to ensure that no harm should befall anyone who used his property, as per s.(1)(3)(b) of the Occupiers Liability Act 1984.

The court however found in favor of the defendant and rejected the plaintiff’s argument and decided that just because a person erects a fence across his property does not mean he or she is aware that there were others who were using the property.

Farmers, including sheep and cattle farmers, would be the most common example of people who fence-off their property because they don’t want any harm to befall the animals and they do not want the animals to get in the way of traffic. If the animals got on a road they could cause a very serious accident.

Likewise, dog owners, also, normally fence off their property to prevent their dogs from getting out. Just because a property is fenced off, it doesn’t necessarily mean or imply that the owner, occupier or the person who has control over the property is aware that the property is being used as a short-cut.

In Swain v Natui Ram Puri (1996) a 9-year-old child got on the defendant’s roof and subsequently fell off and sustained injuries as a result. The matter was brought before the court and the defendant contended that he did not have any knowledge that the plaintiff was in the area or had no reasonable grounds to anticipate that a 9-year-old child could get on his roof.

S.(1)(3) of the Occupier Liabilities Act 1984 states “An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if …. S.(1)(3)(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not);

It is difficult to say with any degree of certainty that a 9-year-old child could get on top of the defendant’s roof and it is it is difficult to expect the defendant to anticipate that a child of that age could get on his roof. The defendant was held to be not liable.

In Ratcliff v McConnell (1999) the plaintiff who was a student at a college after a night out decided to go for a swim in the college pool with his friends. At the time when they arrived at the pool, there was a notice on the closed gates that informed any would-be user that the pool would be closed from 10 pm to 6.30 pm and the use of the pool during those hours was prohibited.

The plaintiff and his friends climbed over the gate and made their way to the pool. There were clear markings that differentiated the shallow end of the pool from the deep end but because of the poor lighting the plaintiff and his friends failed to see the markings. The plaintiff subsequently dived into the shallow end of the pool and sustained serious injuries. The plaintiff sued.

The court had to once again look at s.(1)(3)(b) to determine if the college owed the plaintiff a duty of care. The duty that the court had to consider was that which was owed to a trespasser. The court decided that because there was only one past accident in the pool and the victim was a visiting college student and no accident had befallen any student from the college in the past, the defendants were not liable, or could not be held accountable. It is worth comparing the decision in Ratcliff v McConnell (1999) with that in Rae v Mars (UK) Ltd (1990).

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward

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