alok mishra tort project 2 trim (3)
DESCRIPTION
this is a project on LIABILITY TOWARDS TRESPASSERS AND CHILDREN UNDER THE OCCUPIERS’ LIABILITY ACT 1984TRANSCRIPT
NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL
A PROJECT ON LAW OF TORTS-II
LIABILITY TOWARDS TRESPASSERS AND CHILDREN UNDER THE OCCUPIERS’ LIABILITY
ACT 1984
SUBMITTED TO:MR. RAJIV KHARE
SUBMITTED BY:Alok Mishra
2011 B.A LL.B (HONS.)36
2nd TRIMESTERTABLE OF CONTENTS
1 STATEMENT OF PURPOSE……………………………………3
2 INTRODUCTION………………………………………………. 4
3 OCCUPIERS’ LIABILITY ACT………………………………...5
4 LIABILITY FOR TRESPASSERS………………………………9
5 DUTIES TO TRESPASSERS…………………………………...10
6 LIABILITY FOR CHILDREN…………………………………..13
7 THE ALLUREMENT PRINCIPLE……………………………...14
8 CONCLUSION…………………………………………………..16
9 BIBLIOGRAPHY……………………………………………….. 17
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STATEMENT OF PURPOSE
The Statement of Purpose is to basically study and understand the duties and rights
towards trespassers and children in case of dangerous premises under the Occupiers’
Liability Act 1984.
3
INTRODUCTION:
Liability for dangerous premises cannot be considered as a separate tort, but a compound
of liability in negligence, nuisance and also the strict liability rule in Rylands v Fletcher.
While determining the issue, the basic question asked is: where did the damage occur. If
the damage occurred on the premises, the common law action was in the form of
negligence. If the damage occurred off the premises, the action will lie usually in
nuisance or strict liability.
The basic question when one asks about liability towards dangerous premises is about the
occupier who owns that particular premises. The liability towards third parties is
commonly called ‘occupiers liability’.
Occupiers Liability is further sub-divided into liability to lawful visitors which is
governed by the Occupiers Liability Act 1957 and the liability to persons other than
visitors under the Occupiers’ Liability Act 1984.
In this project, I am dealing with liability towards unlawful visitors under the Occupiers
Liability Act 1984 which deals with trespassers and children.
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THE OCCUPIERS LIABILITY ACT 1984
The Occupiers’ Liability Act 1984 basically tells us about the duty of occupier to persons
other than his visitors.
An occupier of premises owes a duty to another, as in who is not a visitor in respect of
any such risk if-
a) he is aware of the danger or has reasonable grounds to believe that the risk exists.
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 concerned.
c)The risk may be one against which, in all the circumstances of the case, he may
reasonably be expected to offer the other some protection.
It also states that an occupier of premises owes a duty of care to another in respect of
such a risk, the duty is to see that he does not suffer injury on the premises by reason of
the danger concerned1.
Duty owed might be discharged by taking such steps as are reasonable in all the
circumstances by giving warnings of the danger concerned or to discourage persons from
incurring the risk.
No duty is owed if the person has willingly accepted the risk and got injured and no duty
is owed if persons use the highway. No duty is owed to such persons.
The leading case on the Occupiers’ Liability Act 1984 is Radcliff v. McGonnell2 where
the plaintiff went drinking with two friends after which they decided to go swimming in
his college’s swimming pool. The gate to the pool was locked, but the plaintiff gained
access by climbing over it. The only lighting at the pool was a motion activated security
light. The plaintiff dived into the pool, hit his head onto the bottom and suffered very
severe injuries.
1 Modern Tort Law by V.Harpwood2 [1999] WLR 670
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As per the Act, it requires the court to decide first whether a duty arises at all and
secondly whether the defendant has reasonably acted in all the circumstances to see that
injury did not occur by reason of danger and thirdly whether there were warnings to
discourage people from taking the risk.
There is no element in the Radcliff case to exempt the defendant from liability.
The Occupiers’ Liability Act 1984 covers three categories of entrants, the most important
one being trespasser3.
a) Persons exercising a statutory right
People who enter land exercising rights conferred by an access agreement or order
section 60 of the National Parks and access to the Country sides Act 1949 are entrants.
b) People exercising a private right of way
It has been decided in the case of Holden v. White4, that people using a private right of
way were not visitors and therefore no duty of care had been owed to them.
The Law Commission intended that people using a private right of way should be
covered by the Occupiers’ Liability Act 1957, there may still be circumstances where the
act does not apply to the people. If the owner of the land is not an occupier, the act does
not apply. In Holden v. White, it was decided that persons using private right of way were
not the visitors of the occupier land. This means that a milkman who was injured by a
defective manhole cover could not sue the owner of the land over which the right of way
passed.
Warning
In reasonable circumstances, the occupier may discharge his duty by taking reasonable
steps to give a warning of the danger concerned, or to discourage persons from taking the
risk. Warning notices would often be inadequate for children, either because the child
cannot read or is incapable of appreciating the danger. In such a event, the occupier may
3 Principles of Tort Law by V.Harpwood4 [1982] 2 ALL ER 382
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take will have to take additional steps like erecting obstacles particularly if the risk is an
allurement5.
Warning notices will be more successful with adults and it seems that almost any notice
will suffice as in the case of Westwood v. Post office6. Also there is no duty to warn an
adult about an obvious risk which could readily have been avoided.
Acceptance of risk
The defence of volenti non fit injuria can be applied as per the Occupiers’ Liability Act
1984. In this, the defendant must establish that the plaintiff not only consented to the risk
but also that he agreed that if he was injured, the loss should be his not the defendants’.
In cases involving trespassers, it is possible to argue that knowledge of a risk plus entry
onto the land renders a trespasser volenti as in the case of Westwood v. Post office.
c) Exclusion of liability
The act makes no reference to the question of whether an occupier can exclude or restrict
his potential liability under this act unlike the 1957 act which reserves an occupier
common law right to ‘restrict, modify or exclude’ his duty to visitors.
There may be some limit upon the type of conduct for which liability could be excluded.
It would be strange if the occupier could exclude the statutory duty and thereby avoid all
liability, even for reckless acts and omissions. It would be advisable that an occupiers’
power to exclude liability rests upon a right to prohibit entry. The occupier has no right to
prevent the entry of a person exercising a public right of access.
Two differences should be noted between the duty of care to lawful visitors and that to
trespassers7. First, the 1984 Act only applies to personal injury. The 1957 Act is not so
limited. This means that, in effect, the occupier carries no liability for damage to a
trespasser's property, however expensive. Second, the 1957 Act allows that a visitor may
5 .(British railway board v. Herrington) AC 877, 940 per lore diplock.6 [1973] 1 QB 591, 6057 www.kevinboone.com
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waive his protection under the Act by a clear disclaimer, subject to the provisions of the
Unfair Contract Terms Act 1977. The 1984 Act makes no such statement. It is not
entirely clear why a person is allowed to waive his responsibility to lawful visitors, but
not to trespassers. Alternatively, the duty of care to a trespasser is so low that it would
unjust to allow the occupier to lower it still further by a disclaimer. Another argument is
that, while it would be possible to get a lawful visitor to express his agreement to the
terms of a disclaimer, it is not clear how one would get a trespasser to do so.
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LIABILITY FOR TRESPASSERS
Who is a trespasser?
A trespasser may be defined as a person whose presence on land is unknown to the
occupier, or if known is objected to by the occupier in some practical way. In many
instances, it was possible for the courts to find that people who had been repeatedly
trespassing on land had become lawful visitors, though there was no fixed period of time
or number of occasions on which the trespass had to occur in order to establish a lawful
presence on land8.
While it is generally accepted that a property-owner has to bear some responsibility for
what befalls lawful visitors to his property, there are those who would deny that a
property-owner has any duty of care to a trespasser at all.
After all, if someone creeps into my back garden in the dead of night, intent on burgling
my house, why should I care if he falls into the old, deep well that I allow to remain
overgrown and concealed there? The problem with this argument is that `trespasser' is a
very wide category of person indeed. For example, a person who accidentally strays onto
my land while stumbling home from the pub is undeniably a trespasser, as is a child who
climbs over my fence to retrieve a lost football. In general, the law of tort does not
concern itself with motive, and the fact that a person has entered my land accidentally
does not stop his actions constituting a trespass. In general, the law could, and does,
impose a duty on land occupiers to take at least a minimum of care to ensure that
unauthorized entrants on their do not meet with disaster. The standard of care owned to a
trespasser is, unsurprisingly, lower than that owed to a lawful visitor, but it is not
negligible.
8 Principles of Tort Law by V.Harpwood
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Duties to trespassers
With respect to the duties owed to trespassers, there are two types of trespassers to
consider. First, there is the undiscovered trespasser, to whom the property owner owes no
duty whatsoever. Second, there is the anticipated or discovered trespasser. To those
parties, the landowner owes a duty of common humanity (British Railways Board v.
Herrington)a duty to warn them of deadly conditions on the land which would be hidden
to them, but of which the property owner is aware. A warning sign at the entrance to the
land will suffice for this purpose. However, a property owner is under no duty to
ascertain hazards on his property, and cannot be held liable for failing to discover a
deadly hazard which injures a trespasser9.
Furthermore, an adult trespasser who is injured while on a defendant's property cannot
sue under a theory of strict liability, even if the landowner was engaged in ultra
hazardous activities, such as the keeping of wild animals, or the use of explosives.
Instead, the trespasser must prove that the property owner intentionally or wantoning
injured the plaintiff to recover. The exception is a child who is trespassing to play on
ultra-hazardous items on the land. Since these trespassers are considered "anticipated"
they are accepted under the doctrine of attractive nuisance.
A property owner may use reasonable (no deadly) force to prevent a person from
trespassing on his, her or its land, or to expel a trespasser. However, a property owner
may not force a trespasser off of his land if doing so would expose the trespasser to a risk
of serious injury. For example, a trespasser who takes shelter in a stranger's barn during a
powerful storm cannot be expelled until the storm is over.
Certain case laws The occupier has no duty to warn the trespasser of existing defects or
to take precautions for his safety. In the case of Grand Trunk Rly of Canada v. Barnett10,
the railway company was not held liable to a person traveling without a ticket and injured
by collision.
9 www.en.wikipedia.org10 [1911] AC 361
10
In the case of manned railway level crossing, the moment the public come to know or
have reason to believe about the approach of any train, they are trespassers on the level
crossing belonging to the railways11.
Also in the case of Coffee v. McEvoy12, a policeman who entered the defendant’s
premises one night suspecting something wrong fell into a saw pit was held to have no
remedy as he had no right to enter.
In the case of Cherubin Gregory v. State of Bihar13, it was held that an owner or an
occupier cannot set up a trap to cause personal injury to a trespasser. However, he may
adopt reasonable measures for prevention of trespass like putting up a barbed wire fence
or a wall with broken glass. A trespasser or a thief hurt by such things cannot obviously
complain. The occupier owes a duty not to do any act involving danger to trespassers in
the premises with knowledge of their presence or its likelihood.
A driver of a railway engine who sees a trespasser on the track is bound to use reasonable
care to avoid running over him by whistling and warning or if need by slowing or
stopping the train14.
Where a person while passing through the land of another at ten o’clock at night to reach
the land under his cultivation received a shock from the live electric wire laid in the land
of other, will be entitled to receive damages from the landowner who has laid the wire.
The duty of a child trespasser is not different in principle from that of an adult trespasser.
However, the danger to one may not be a danger to the other and the occupier may be
bound to take greater precautions to avoid dangers to straying children than in the case of
adults.
11 Ramaswamy Iyer’s Law of Torts12 [1912] 2 IR R 29013 AIR 1964 SC 20514 Ramaswamy Iyer’s Law of Torts
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Aggravated or Anticipated Trespass
Where the trespasser trespasses on land with the intention of disrupting or intimidated
those taking part in lawful activity taking place on that or adjacent land, then this is an
aggravated trespass and the Police can occasionally be of assistance in removing the
trespassers. This is of particular use where protestors are attempting to disrupt lawful
activity. This can include nuclear sites or scientific laboratories. In some circumstances
there can also be action taken where there is an anticipated trespass which can be vital for
clients with sensitive businesses such as landowners with laboratories on site carrying out
animal experiments15.
15 www.boodlehatfield.com
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LIABILITY FOR CHILDREN
The degree of care to be shown towards children as well as to adults, who come to the
premises, may produce different results. This is because the degree of care shown
towards children and adults are different. An occupier must always be prepared for
children to be less careful than adults under the Occupiers’ Liability Act 1957, section
2(3).
An object which poses no threat to an adult may be dangerous to a child, as for in
Moloney v. Lambeth London Borough Council16 where a boy aged four fell through a gap
in the railings protecting a stairwell. An adult could not have fallen through the gap. The
occupier was held liable..
In the case of Vijay Shanker v. Union of India17, the railway authority was held not liable
for injury to a two year old child trespassing on a railway line as the Railways Act in
India did not cast a duty on a railway authority to fence the line even where it ran through
residential houses on both sides.
Keown v. Coventry Healthcare NHS Trust (2006), where the Defendant had a building in
grounds where it knew children. The Defendant did not know that children climbed the
underside of a fire escape. The Claimant (11) suffered a serious head injury when he fell
30 feet from the fire escape. The Court of Appeal dismissed the claim under the 1984
Act. Neither the building nor the fire escape were dangerous in themselves. They were
only made dangerous by the Claimant’s actions. In the case of children, there was a duty
to protect against obvious risks where the child might not be able to recognise a danger
that an adult might. The Claimant had known that there was a risk of falling and that what
he was doing was dangerous. Thus, the risk arose not out of the state of the premises but
out of what the Claimant chose to do.
16 [1966] 64 LGR 440, Textbook on Torts by Jones17 AIR 1958 Punjab 246
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Siddorn v Patel (2007) where the Claimant sought damages from her landlord after she
fell through a Perspex skylight in a garage roof adjacent to her flat when, during a party,
she and others climbed out of a window and danced on the roof. The Judge dismissed the
claim. There was no evidence that the Defendant had been aware that she or any other
unauthorised person was likely to make use of or gain access to the roof and the
Defendant was entitled to take heed of the fact that the tenants were educated and
sensible adults.
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THE ALLUREMENT PRINCIPLE
Allurement Principle basically refers to the cases where courts have found occupiers
liable to children who have been attracted by ‘traps’ onto certain parts of premises and
injured there18.
In the case of Glasgow v. Taylor19, a seven year child ate some poisonous berries while
playing in a public park. The bush was not fenced off and as a result the child died. Here
the berries constituted a trap or allurement to the child. The main point inferred from here
is that allurement principle only applies to cases where the child is there in the premises
as a lawful visitor.
It must be also noted that allurement will not make a child trespasser, a lawful visitor. In
the case of Liddle v.Yorkshire20, it was held that the defendants were not liable when a
child who was a trespasser was playing on a high bank of soil and jumped off the soil in
order to impress is friends. Here the child was a trespasser as he had been warned by the
defendant’s on previous occasions.
Cases decided after Herrington case and before the Occupiers Liability Act 1984 came
into force in which occupiers were held liable to trespassers all concerned children.
However, Law Commission Report recommended that the kind of protection afforded by
Herrington ought to be extended to adults before the Occupiers Liability Act was passed.
CONCLUSION18 Tort Cases and Material by Hepple, Howarth & Mathews19 192220 North Riiding [1944]
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We can conclude that reasonable precautions should be taken for trespassers and children
even though they are not lawful visitors under the Occupiers’ Liability Act 1984.
Although they must have entered the premises illegally, still the owner of the land owes a
reasonable duty of care or the duty of common humanity towards them.
All reasonable precautions should be taken to see that the trespasser does not suffer injury
on the premises and steps should be taken to give reasonable warning of the danger
concerned or to discourage people from incurring the risk.
Basically, the defence of volenti non fit injuria should be observed by the defendant.
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BIBLIOGRAPHY
BOOKS
1. Principles Of Tort Law 3rd edition by Vivienne Harpwood
2. Textbook On Torts 8th edition by Mike.A.Jones
3. Tort Cases and Materials 5th edition by Hepple, Howarth and Mathews
4. Modern Tort Law 6th edition by Vivienne Harpwood
5. Ramaswamy Iyer’s Law of Torts 10th edition by A.Laxminath and M.Sridhar
WEBSITES
1. www.kevinboone.com
2. www.en.wikipedia.org
3. www.boodlehatfield.com
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