Crucial Occupiers Liability Update 2021 - Who To Sue?
Hello and welcome to this webinar. Occupiers liability, Who to sue. My name is Nikki carter and I thought we would do is take a look at the current landscape in the world of occupiers liability and what I wanted to do really was try and firstly sort of think about the likely defendants in an occupiers liability scenario, but also then think of the restrictions, if you like on the chances of success and what problems we might run into. So I wanted to do a bit of a study really of what's been going on um in occupiers like the occupiers liability arena, um I wanted to sort of begin by taking a look at the, at the act itself and the duties under it and pick up a few of the areas that cause problems and one of the areas that causes uncertainty is the area concerning the duty of the Occupier to any contractors who might be working on their premises or on premises that they control. And there's a recent case called Moriah and moron. Um that that looks at this aspect of the argument in detail. I also wanted to look at cases like english heritage and Taylor and McKevitt National Trust for Scotland and that's in respect of obvious dangers. So in other words, dangers that, you know, the argument would be are so obvious um that in fact, you know, the claimant, if you like, should have been looking out for them. Um the other thing that that's come up as a sort of current issue is the role of warnings and disclaimers and safety briefings and there's a couple of cases I want to look at in this context particularly um this idea of perhaps a waiver or exclusion of liability clause signed by claimant and any instructions that have been given to a claimant before perhaps embarking on an activity. I wanted to um talk about Valenti and consent and particularly have a look at the whole idea that perhaps um the claimant can consent to the risks involved in the accident and that's allowed for specifically under the Occupiers Liability Act Section 25. And we'll look at how that works in practice. I also wanted to take a look at Occupy's liability for the actions of visitors. So sometimes we're talking about the duty 02 visitors but this is liability for the actions of visitors on the occupies premises. I think we also need to consider the role the position if you like of vulnerable visitors. And potentially the whole concept of trespass is um is a cake called case called puck and russell. Um which I think will be a good example of looking at that whole thing in action. And then very lastly I just want to look at the concept of the principle of quarks when it comes to multi defendant case is because what we know is that occupies liability cases will very often be multiple defendant cases. It's really very difficult to be sure a lot of the time who the right defendant might be. And so they often become cases where, you know, you have additional parties, um perhaps you have multiple defendants in addition, so they can become quite complex. And I just thought that that cost of in case picks up the issue of the relevance of quarks in that arena. I wanted to begin just by being clear about the duty in the Occupiers liability act and we know that the common duty of care set out in Section 22 of the act is a duty to take such care as in all the circumstances of the case is reasonable to see the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted to be there. And that protection, if you like, allows that visit to that protection when the visitor is using the premises for if you like the purpose um that they are permitted to be there. So any other kind of behavior um you know, going into different parts of a building, perhaps private areas of a building, perhaps carrying out an activity that isn't something um that the occupier would have invited or permitted them to do. Then it could be that we're looking at a situation where there might not be a duty owed under the 1957 occupies liability act, but we might be moving to a duty under the 1980 for Occupiers liability act, so called trespass act. So we look at that in a little bit more detail in a moment. Um Certainly Under Section one. Sub 1, the occupier of the premises is given the same meaning as a common law. And so what what's needed for there to be an occupier is that there must be some sufficient degree of control over the premises. And that sufficiency of control amounts to an ability to ensure the safety of the premises. So there has to be some ability for the occupier to maintain control By ensuring safety. They need to have some power to take steps to improve safety. And certainly also sufficiency of control amounts to an appreciation that failure to use, care may result in injury to others. Don't forget, we know that control need not be exclusive. So there could be a number of potential defendants with control over an area of the premises, but it doesn't need to be that the person you're bringing the claim against has exclusive control. Mr. Obvious examples about that will be Sort of four courts in stations, perhaps concourses where there might be a number of businesses operating, and where it might be that the relevant defendant that you've chosen is going to have control over over a limited part of the premises, which leads to the next point. Control need not extend to the entirety of the premises. So it may be the person against whom you bring. The claim has only got control over part of the premises claims using. And I think we always need to remember lastly that there needs to be some degree of actual physical control of the premises. And so, you know, what we need is we need someone to be able and in a position to take physical steps to control the premises. Remember all of that added together doesn't necessarily mean that the defendant we have in an occupied liability case will be the owner of the premises and that's absolutely not what the act talks about. This is all about Control. And I think section 11 is useful to try and work out what the court or the app means when it talks about control. Certainly we know that it's reasonable care and we have to then try and decide well, what does that mean in the context of the actor, what is reasonable um where desirable activity takes place on, on occupiers land the courts required to have regard to whether steps taken to avoid the accident might prevent, discourage or limit the activity. So, for example, section one of the compensation Act 2000 and six, and in practice, that's something the court is likely to do as part of a balancing exercise really. Um, you know, cases like Sutton and um system Rugby football club Back in 2011, explore that point where debris on the pitch caused an injury and it's sort of partly for this reason, the court held that, you know, no minute inspection of the pitch was required. Just a reasonable walking inspection, I think we also need to explore the role of the Social Action Responsibility and Heroism Act 2015, much maligned act, which applies wherever a court considers a claim that a person was negligent or in breach of statutory duty and considers the steps required to meet that duty of care and under the act, the court to consider whether the alleged breach occurred when the person said to be in breach was acting for the benefit of society or any of its members. Secondly, whether the person said to be in breach, demonstrated a predominantly responsible approach towards protecting the safety or other interests of others. And thirdly, whether the person injured was acting heroically by intervening in an emergency to assist an individual in danger. Um, it's pretty difficult to see frankly whether that act advances any existing laws in any way, really, and I think most judges take the view they're perfectly capable of coming to those conclusions in the absence of that rather unnecessary act. But let's examine reasonableness in the, you know, in the context of the Occupiers liability act, so reasonable. This will be determined in relation to the purpose of the visit the visitor. So in other words, whether the child, whether it's a child or whether it's an adult visitor, whether um it's a contractor who comes onto the premises with particular expertise, what the occupy knows, and I think, you know, one thing to say about the Occupiers knowledge is, we're in a very different category to the category that applies when we're talking about employers liability. So not necessarily doesn't Occupiers knowledge go further than what the occupier actually knows, and it wouldn't necessarily go as far as it does in employers liability, for example, where it goes to the level of, you know, what the employer ought to know. Lighting clearly is relevant. If we're talking about defects and problems with the premises, warnings are likely to be considered quite good detail. We'll take a look at a bit later, specifically at warnings and the role of warnings in establishing liability and difficulty in removing the danger and expense in removing the danger. And so what we have here, we have a situation where on deciding what's reasonable, the court will look at the sort of combination of the two things. How difficult was it to remove the danger? How expensive was it to remove the danger? And just as when we look at reasonableness in the common law, the court will weigh the two up. You know, and I think I would also add to that while weighing those two up, relevant is for the defendant, if you like, the question for the defendant is to decide how great the risk is. You know, if it's an easy danger to remove that could be removed very cheaply. And the risk of injury or the risk of harm is enormous, then that balancing exercise is not going to be in favor of the defendant and the defendants going to find themselves in some difficulty. I think in defending a claim, I think one of the things we have to consider is that the 1957 act only provides protection to visitors who use the premises for the purpose, which entitles them to be there. If the visitor uses the premises for any other purpose, then there's not going to be a duty under the 1957 Act, and any remedy that they might be entitled to is likely to be a remedy that will come as a result of the 1980 for act. Um and certainly, you know, on occasion, we see uh defendants arguing in occupiers liability cakes the cases that by the activity exhibited by the claimant, whatever activity it might be that that takes that visitor outside um the sort of implied license, let's say that extends to visitors by the very activities that are undertaken. And I would I would make reference to cases like Harvey and Plymouth City Council, Which went to the court of appeal in 2010 where it was the claimants conduct and behavior on the defendant's premises that took him outside that license if you like. That implied license to visitors. Um You know, the lower duty, there's no question is a lower duty under the 1994 Act might be the appropriate one, depending on the claimant's conduct and behavior, and perhaps where on the premises the claimant was. Did the claimant gain access, had the claimant gained, gained access to a private or staff only area of the premises? And again, we've seen a tragic case with just that principle in a case called overview um O v you against the London underground from just a few months ago, where a young man tragically fell down the steps steps in a cordoned off in private area of the underground station and the court took the view that the claim was to be unsuccessful uh Largely on the basis of applying the principles of the 1984 Act. That act replaces the rules of the common law for the purpose of determining the existence and scope of any duty owed by an occupier to persons other than his visitors. But the act only applies to risks due to the state of the premises or things done or omitted to be done on those premises. And, you know, if we could sort of, pray see what their duty is, it's where there's any duty, are any danger, I should say, due to the state of the premises or things done or omitted to be done on them. There is a duty to take such care as is reasonable in all the circumstances of the case, to see the trespasser doesn't suffer injury on the premises by reason of the danger concerned, if that occupier is aware of the danger or has reasonable grounds to believe it exists and knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned. And the risk is one against which in all the circumstances he may reasonably be expected to offer the other some protection. And certainly, you know, the problem with the Act and, you know, it's been the problem really since it came into existence. Um is that in a case called Ratcliffe, I think um Lord Justice Smith made this comment um that that there has only ever been one reported case in which an adult trespasser in a personal injury claim had succeeded and that case was a Canadian case. Consequently, you know, the problem is that if you're Dealing with an adult trespasser, the chances of being successful in that lower duty under the 1984 Act are really slim. And if we think about the way in which the 1984 act came into being, it came about as a result of a decision in a case called Harrington on the British Railways Board. Um and, you know, the act itself is largely based on the House of Lords key speeches, um key judgments, um in that particular case and that of course concerned a child. So it becomes increasingly difficult to win those cases for adults contractors. What's interesting, I think about the Act is the way in which it deals with the relationship between occupiers and their contractors. So the act talks about the fact that where occupiers have selected are contracted to carry out work or activities on these premises. How far does that liability extent to concern the actions of the contractors? Well, we know that occupiers must take reasonable steps to ensure that the contractor is competent. So we know that the occupy will need to take some steps to try and establish how competent their contractor is. And we know that they need to take reasonable steps to ensure the work has been done competently, but only if the nature of the work so permits. So it may be the highly technical or skilled work will mean on the part of the contractor will mean the occupy is not really in a position to check and see if the work's been done competently. The difficulty for the occupiers, they won't have the necessary knowledge and skills. And so to a certain Extent we can see the occupiers entitled to rely on the level of competence of the contractor. So for example, in cases like Hood, a mighty property services back in 2005 where an experienced roofing contractor which had held itself out to the site owners being able to do certain roofing work and have a proper approach to safety was liable to his workmen for personal injury damages. The site owner was actually the post office was not liable to contribute as it only had a common duty to take such carers was reasonable in the circumstances control of the site generally didn't impose any further duties. So we know that we don't expect on the part of occupies that technical knowledge and skill, you know, Repaired two steps might be obvious, cleaning might be obvious. Um but certainly the, you know, the faulty repair for example of a lift will not render a non expert occupy liable without some more information. Um It should be noted that reasonable checks on an independent contractor may extend to checking if there is sufficient public liability insurance in place. Cases like Willem and West Hearts hospitals. NHS trust make that point. Although be wary that duty if you like to check on public liability insurance of the contractors is pretty limited and does not involve the occupier acting as sort of Sherlock Holmes in terms of trying to establish the insurance protection of their contractor, simply raising the issue and asking the contractor seems to be enough. I think in terms of liability that might attach to an occupier. We we begin to see in cases like moria and more and some guidance really on what a small Business occupy might be expected to do when supervising construction works undertaken by independent 3rd parties at their premises. So when a laborer brings a claim um that he suffered serious injury caused by the defendant's negligent and he brings a claim not only against his, I say employer, but in fact not not necessarily employer on paper. Certainly building company um that had used him for work in the past he was actually self employed. Um And when he falls from an unguarded mezzanine floor in factory premises, the occupier of those premises, a company called Pro lake, um We're also joined into the action by the claimant as a potential second defendant. Um So we we rack up in that particular case. Three defendants one um the building contractor, the claim and I actually worked for second, a building company that booked the original building company and the occupier of the premises. Um The claimant sustains his fall when working in an unguarded area of mezzanine floor and trying to carry up a number of flooring boards when he slips backwards sustaining serious injuries. One of the key issues in the case and for our purposes today was the extent to which the occupier had control over the way the work is being done and the evidence is that one of the two directors of the occupying company was actually present in the premises that morning, moving around and at various points had been seeing what the contractors were doing in the kind of work they were doing. Um interestingly the judge accepted in this case that one of the directors of the occupier company was unaware that the guardrail which had previously previously prevented access to the mezzanine floor had been removed. And the directors evidence was pretty clear, he was not aware of the manner of transfer of the boards up to that unguarded area and hadn't noticed anything that would cause him to intervene in the way the work was being done. The judge accepted. I think that that director who had no construction experience had booked the workers to come along and took them to be reasonably competent contractors. Um even if in moving between the various parts of the factory, the court said the director had caught sight of the workmen transferring the boards up to that unguarded area. He had entrusted that work to what you understood to be experienced workmen and reference was made to Section two, sub three sub B of that 1957 Act. Um and certainly that provides, doesn't it? That an occupier can expect a person in the exercise of their calling will appreciate and guard against any risks, special risks, ordinarily incident, incidental to the work that they're doing insofar as the occupy leaves them free to do so. So the idea here is, you have an inexpensive experience, not expert. Director of an occupier who did see what the men were doing but was entitled to take the view they were skilled and that they would put in place measures to deal with any obvious risks. It's interesting that when that director of that company was asked about control. Um and he confirmed he had control over where the men worked, but not how they did their work because if that were the case, then that would equate to supervising them interestingly. And I suspect in answer to a very clever question from counsel, potentially, he also accepted he had the ability to stop them if their particular way of doing the work was dangerous. But again, that's a very limited ability. Um You know, working out what's dangerous and what's not and what measures have been put in place by the workmen would be something the court, I think would not expect the occupier to do. Clearly, the court found that as far as the claimant was concerned, he was effectively an employee of one of the building companies clearly owed him a duty. An interesting fact that he paid his own tax and National Insurance, but he was carrying out the business if you like, of the second defendant and that they had complete control over the way the work was being done. Both defendants were found equally liable given the obvious risk, but let's take a look in terms of the claimant, he was a general laborer, finding a fact he was employed by the second defendant who owed him a duty of care. Also, the first defendant was not the claimants employer but owed him a duty of care. But what about the occupier? The 3rd defendant. The occupier had not breached the common duty of care owed to the claimant under section to remember if you like. That's the relationship between the occupier and the claimant. The danger to that claimant arose because he was working on a section of Mezzanine without a guard rail. It was the static condition of the premises that created the danger. Therefore, clearly the Occupiers liability act applied, but no danger would have arisen, but for the decisions of the 1st and 2nd defendants to choose to work on that unguarded section of Mezzanine. So the occupier, um third the third defendant um had a barrier rail in place designed to prevent access to that section and it was unaware that the second defendant and a claimant had removed that barrier. Um The Occupier, there was no evidence. The occupier even knew the men were working on that area of Mezzanine and adopting an unsafe system of work, It had no knowledge of construction work and was entitled to leave that work to the skilled workmen in those circumstances. The third defendant hadn't breached its duty of care and the fact that it owed one. Yes, but it hadn't breached it. Um It wasn't a talk visa and accordingly there was no liability on the part of the third defendant for the accident. So it's clear that the wise occupier will, you know take on skilled competent contractors. And you know, tempting to say, as we said about fireworks and then stand well back because the risk for the occupier is the more involvement of them on the part of the occupier and the way the work is being done, the greater the risk that the court will take a view that there is, if you like, um control of the way in which the work is being done by the occupier. One of the problems that comes up very often in occupies liability cases is the argument if you like that there is a danger that on the premises that is so obvious um that you know, no measures are needed if you like to limit the risk that it presents and in an action of damages by a visitor to a garden occupied by a conservation charity. Um this was a claim by the claimant when she fell over a stone in the garden grounds. The claims that the court had to fail while the stone was not an obvious danger and that's certainly been argued by the defendants, um should not prove that the duty of reasonable care on the Scottish case of the defender required it to do more than it had. Um The claimant raised an action of damages against that charity for tripping over the stone. The stone was located to the left of the path which led away from a junction, parts of which were covered in moss And the pursuer had been consulting her map, taken a couple of steps forward when she fell landing heavily on her right side. Now, her claim was based on the occupiers liability bracket Scotland Brackets, 1960 and she argued that the stone actually constituted a danger, it wasn't obvious to her and it was unusual um, and to an extent concealed and it was a feature that the defendant knew about the circumstances of the path. It failed to remove. It failed to otherwise deal with the stone in some way and diminish the risk which it presented. They could have moved it, they could have fenced it, they could have marked on the map. The defender maintained the stone did not constitute a danger and that if it did, it was obvious and may steps were required to be taken to guard against that risk. So the question was, should the defender have taken precautions? Well, in answer to the first question was the stone an obvious danger. The answer was no, it wasn't in order to be categorized as an obvious danger. The feature had to be physically obvious and it had to be obvious that it presented a danger. But there really was a bit of factual dispute about how visible stone was. The second question was, should the defender have taken precautions and the answer to that was no. Um, looking at all the circumstances, the pursuer hadn't proved that the duty of reasonable care required it to do more than it did. The risk of harm was not foreseeable. The stone only became more difficult to see if a number of conditions existed that included vegetation lighting and if someone was standing so close to it. The standard of reasonable care didn't require that steps be taken to guard against something which was a remote possibility. Taking into account the evidence concerning how likely that harm was and the gravity of the risk, it was not obvious that any absence of precautions argued for by the pursuer showed fully on the defenders part the onus was on the pursuer to establish causation and you know, a precursor to that doing that was proof of the particular nature of the precautions, which was said to have been appropriate, specified with an appropriate degree of accuracy. So the claimant is going to be expected to come up if you like, with ideas as to how and what the occupy could have done to reduce the risk and that wasn't done in this case. Um interestingly, um You know, the court decided it wasn't necessary obviously to consider contradictory negligence, but that there would have been a 10% reduction um for, you know, not checking ahead of her route when she was consulting her map. So I think it's interesting that, you know, we have this idea that there may be situations where there's an obvious danger and certainly we saw this being examined in the english heritage and taylor case from 2000 and 16, which went to the court of appeal. Um the court of appeal were upholding a decision. The English heritage was in breach of its common duty of care under the occupiers liability at 1957 by failing to provide a sign warning visitors to one of its sights of a sheer drop, which was not obvious. The court reiterated the principle that adult visitors did not require warnings of obvious risk except where they did not have a genuine and informed choice. In this case, the claimant had been visiting a castle um run by english heritage, opened by english heritage and he fell and suffered a head injury. A designated walk on the site ran around the sort of tower fortifications, if you like. Uh there was an elevated cannon firing platform and directly below that platform at the base of a steep slope was a grass pathway. Uh There was also an informal path down the slope from the platform to the pathway. On the other side of the pathway was beyond the bastion wall was a dry moat and the claimant set off down the informal path, lost his footing and fell across the grass pathway over the wall into the dry moat. A centrally she really was. Was anyone contemplating going down that steep slope to the pathway could have seen that there was a sheer drop into the moat, such that there was an obvious danger. And I think, you know, the issue was that t the claimant claimed the accident was caused by english heritage is negligence if you like. And you know, it's a breach of section to the recorder visited the site before finding the english heritage had breached its section to Duty in failing to warn visitors by means of a sign or some kind of warning of the danger which gave rise to the accident. Um, there was also finding a 50% connect percentage and this, this whole decision was challenged by english heritage Um you know, regarding the breach of section two causation, the apportionment of blame. And it submitted that if that decision was upheld, public organizations will be under pressure to adopt a sort of defensive approach to the guardianship of historical sites leading to an unwelcome proliferation of unsightly warning signs contrary to the public interest. And that's not a small matter. I think, I think we need to be clear about that the idea that, you know, there is a concern um, you know, dead dare I use the dreaded phrase compensation, culture. Um, there is a risk, I think um, that defendants particularly charitable organizations will find that their activities would be virtually impossible if this kind of decision were allowed to stand. Um, english Heritage's arguments advanced for reversing the decision of the breach of section two were rejected and the court held that the recorder was entitled to find that on the balance of probabilities cause causation was established. The risk the claimant took was that he would lose his balance and fall over on a steep grassy slope. Now, that would have been unlikely to cause him a serious head injury. But the risk of falling 12 ft down, a sheer drop was completely different and that involved a real and obvious risk of serious injury. You know, a sign warning of that sheer drop would have been likely to influence the behavior of most sensible people. Said the court, when determining con neg the recorder had to balance the degree of fault and causation of the injury. So 50 50 was a reasonable apportionment relevant, said the court, I think this is worth thinking about when we think about connecting these cases. The english heritage's fault was of a long standing, whereas the claimants was momentary, no basis for interfering with the finding that the sheer drop was not an obvious danger. And the question really of whether a danger is obvious was going to be a difficult one to resolve and it might present an occupier of land with a bit of difficulty. But there were many areas of life. Said the court, in which difficult borderline judgments had to be made and clearly the common duty of care was to say such care as in all the circumstances was reasonable. Remember to see the visitor was reasonably safe in using the premises for the purpose he was invited or permitted to be there. So the court was required to consider all the circumstances that included the obviousness of the danger. And of course, issues of a sort of aesthetic nature. Um If an occupy was in doubt, if a danger was obvious or not, it might take reasonable measures to reduce or eliminate that danger. The steps really need to be no more than reasonable ones. And you know, it didn't mean that occupies like english heritage would have to place unsightly warning signs in prominent positions all over sensitive historical sites. Um The existence of that duty breach of that common duty was on a very specific basis. I. E. The failure um to provide a sign warning of a sheer drop which was absolutely not obvious. Um steps should have been taken to prevent visitors falling coming a cropper. I think it's an interesting case because I think the attempt by the defendant in this case was to make this a case about wider issues and I think what's really obvious here is that the court was unwilling to make this a case about wider issues and determined to decide it on the facts of the individual case. I think one of the areas that causes a lot of problems in occupiers liability cases is the role, the position of warnings disclaimers and the role of let's call them safety briefings that might happen. A couple of cases. I want to pick up this particular one case called malin and decorum personal injury case following a fall from a wall at a climbing center. Um and that that case failed as the risk of falling during that activity was inherent and obvious and the center said the court was not under a duty to provide any training or supervision. Um The center taken steps to draw the claimants attention to the risks inherent in that activity. The claimant sought damages when she fell from a a bouldering wall, the defendant's climbing center, she sustained a serious injury. She was with a friend had completed a beginner's climbing course at the center. Uh that person has signed off as rope competent and was permitted to supervise the claimant. Um They paid actually to enter the premises for general admission and some of the options available to customers using um The center um was, you know, all sorts of activities, but general admission didn't include supervision or training. Um all that had to happen for general admission was that customers had to complete and pass a road test or be accompanied by someone who had the claimant signed a disclaimer and that disclaimer contained what was called a participation statement, just got the words on the slide of what that statement had to say. That statement stated that climbing was an activity with a danger of personal injury or death and the participants should be aware of and accept those risks and be responsible for their own actions. Customers had to answer yes or no to certain questions and the claimant answered yes to questions concerning her understanding that failure to exercise due care could result in injury or death. Let's just have a look at the allegations that were made and the claimant hired a harness but declined to hire specific climbing shoes. Um No safety briefing was given should be said, we should be clear about that. And after a short time on the climbing wall, the claimant and her friend moved to the bouldering wall. Her friend went up and down the wall a few times, but it was on the claimants third attempt, she fell from pretty much almost the top of the wall onto the matting. Um since the claimants accident, novice bouldering wall climbers were required to undertake a safety induction session session at the center prior to climbing. So that changed after the accident and the claimant submitted relying on a code of practice produced by the association of british climbing walls, that the defendant was in breach of its common law duty of care had failed to draw her attention to the risks involved in the activity and had failed to provide basic but necessarily obvious safety information and that such failures caused the injuries that she sustained. The court made reference to a case called Poppleton and the Trustees of the Portsmouth Youth Activities Committee at the risk of falling from that bouldering wall said the court was obvious as conceded when giving her evidence, no amount of matting could avoid the risk of serious injury from an awkward fall and that was certainly something that was dealt with in the pop it in case the court held that the possibility of that was obvious and it was an inherent risk in climbing a bouldering wall. The defendant was not required to train supervised or warn the claimant and it made no difference that the claimant was charged to use the wall. Poppleton was a case in point. So whether or not the claimant paid on entry was irrelevant, even if wrong on that argument, that claim failed because the defendant had taken sufficient steps to draw the claimants attention to the risks inherent. Um, you know, and the fact that the matting wouldn't provide protection in all cases, that participation statement at the top of the disclaimer made it plain that this was an activity. We're there was a danger of person injury or death. And there were also at least two warning notices of the bouldering wall. That matting didn't make it safer. And at least one notice spelled out if you like. The broken or sprained limbs were common. They were on both sides of the entrance to the bouldering wall and were there and clear to be seen whether or not the claimant had read them. The fact that the defendant could have done more perhaps by having a receptionist spell out the risks verbally or hand out, a copy of the warning notice wasn't relevant if the steps taken were actually sufficient. So I think clearly whether they'd had a duty to provide a safety induction or briefing all supervised the claimant and warn her there was a risk of injury that involved consideration of the risks that were inherent and obvious. And I think a lot of things come from this case. You know, the risk of falling from the bouldering wall was plainly obvious and it was equally playing that no amount of matting could avoid the risk of serious injury should she fall awkwardly. You know, the fact that the center charged for admission was irrelevant and didn't amount to any kind of assumption of responsibility or the creation of a duty to warn. Um clearly steps have been taken. So the standard for assessing the defendant's liability is whether the dangers are inherent and obvious if so, there's no duty towards the claim, warned the claimant about those risks. There's no duty to train or supervise. Even if you've charged for entry, the provision of a written warning upon registration with visible signage around the premises is sufficient. And warning of the risks in the of the inherently dangerous activity is sufficient. An additional verbal warning was not necessary, even though the defendant could have done more. And you know, I think this is an important factor to bear in mind the idea that the defendant in a sense could always have done more. Perhaps having someone read out the warning to her, but the defendant gone far enough operator supremacist in offering dangerous leisure activities like climbing walls should consider these to be minimum steps which ought to be taken to avoid liability for injuries that their premises, since their cases will inevitably turn on the individual facts. So we see that once these sort of risky activities, if you like, are being undertaken, what we see is, you know, the idea that the claimant to some extent is going to be responsible for choosing to take those risks. In the case of Poppleton that was mentioned, there was no assumption of responsibility on the part of the climbing center for taking responsibility for the claimant safety. You know, the risks associated with the climbing wall were obvious and, you know, the court summarizing Lord Hoffman's comments in the Tomlinson case. The 1984 Trespasser. Kay said it would be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake. If people want to climb mountains, go hang gliding, or swim or dive into ponds or lakes, that is their affair. The landowner may take a paternalistic view and prefer people not to undertake risky activities on his land, but the law doesn't require him to impose conditions. I have to say. I always find that a difficult statement to transfer to other cases because of course the very nature of the activity. The claimant was carrying out was a bespoke climbing wall. It wasn't just as simply an area of land she chose to climb in. So I do find that reference a little difficult to accept, but that's where we're at. And I think, you know, we can do no better then bring it right up to date and look at the Harrison and the Bear Grylls survival race case um where the claimant was taking place part in a Bear Grylls survival race um and sustained significant injury when she fell from an obstacle. Um She fell to the ground and had serious injuries while attempting to use an elevated monkey ring obstacle. Um The first defendant was the overall organizer of the event, you can see and the second defendant, the part 20 defendant were subcontractors of the first and were responsible for the design of the course, management of the race and the provision of staff and risk assessments. The risk assessment Of the monkey rings identified two hazards. First, a risk of a hard landing from falling from the initial rings, which could be reduced if marshall's briefed the participants to reach out for the rings from a seated position rather than swinging out from a standing position. Secondly, an increased risk of injury when falling from the rings. If there had been a movement of the hay covering the landing surface and they decided that could be reduced by having marshals redistribute the hay between the waves of runners. The claimant claimed she had taken off in a standing position because she hadn't been told about seated position and the hay hadn't been distributed to protect her. The issue really was had the organizers given an appropriate instruction as to what position to adopt when on the obstacle and the accidents were just an inherent risk of participation in races like this one, Let's have a look at what the court decided was the scope of the duty. Once the defendants had stipulated in the risk assessment, that instructions must be given to all participants to swing out from a seated position, they clearly assumed a responsibility to give that instruction. Um Now I think that's quite interesting then the question has to be whether that instruction was given or not, while they're obliged to give it, it didn't follow, they required to speak to each individual person, each participant and satisfy themselves that each individual had received that appropriate instruction. It was enough that the instruction was to be given generally to those standing on the platform, waiting to set off in weighing up the evidence that instruction was probably given. If you contrast that with the duty that had this been an employer's liability situation, it's a world of difference. Um you know, the duty for uh, in relation to the employment situational relationship, employer employee, um, employers would be required to ensure that those warnings and instructions have been heard and understood very, very different when it's an occupier. Um, you know, a failure by the defendants to give the appropriate instruction, even if that's what the court found that although they didn't find it in this case would not have been found to, of course the accident, most participants fell off those monkey wings at some stage, whether standing or sitting and it was chance as to how well or badly they landed in any event. Uh, the accident happened as the claimant reach for the second ring and any connection between her departure from the platform in a standing position and her injuries Was pretty 10uous. It couldn't be said that setting off from a standing position caused her to fall or to suffer more serious injuries. So interestingly, um, duty owed under the Occupiers liability act to give the instruction, but not to mandate that the participants actually did adopt a seated position. You know, we have a situation here, sort of almost the opposite of the nanny state idea. Occupiers are under a duty simply to point things out to adult occupiers who take part in dangerous activities and not to ensure necessarily that that, uh, visitor, um, takes the instructions that they're given. Um, the claimant had elected to participate in the race. She had been aware of the risk of injury when she registered and she signed a waiver form and the court just said it simply was a matter of grave misfortune that she'd had a serious accident accident said the court were inherent risk of participation in obstacle races, no matter how much care how much vigilance by the organizers, it wouldn't eliminate the possibility of those risks materializing from time to time. Clearly the defendants were not liable to the claimant. So I think we can see that reluctance if you like to try and find that an adult taking part in a risky activity is going to have a successful claim against the Occupier who might be organizing it. We can see the same issue in the Pinchbeck and Craggy Island case a lot earlier, but an interesting twist on that um, claimant had climbed a wall in a climbing center and as she descended from it, she jumped rather than climb down as a result, she injured her ankle. She maintained effectively that she hadn't been told how to descend from the wall. The defendants maintained that its instructors had informed her she should climb rather than jump and immediately following the accident, the claimant apologized and stated she knew she was supposed to have climbed down from the wall. Um, she maintained she wasn't given instructions on how to descend and she had not made any admission in respect of being told not to jump and that her apology if you like was was no more than just embarrassment really. Um, the maximum she argued of Valenti didn't apply, although Craggy Island argued that it did. Um, the theme really was, the instructors hadn't given any clear instructions. That was the finding of the core, uh that she was not to jump down from the wall and there was no practical guidance for climbing down the wall at all said the core. Um you know, clearly her apology was out of embarrassment and no more than just uh you know, an expression of regret rather than an admission of responsibility for the accident. Um, I think In a case like this one that maximum valenti had very little application in a case like this, is it presupposed there hadn't been a breach of duty by the defendant and in this case the court took the view there had um the burden was on the defendant to establish that the claimant had materially contributed to the accident through her negligence. Clearly it was appropriate that the climbing center bear the much greater responsibility for the standards and procedures and failing to properly warn her out of interest. There was a finding in that case of one third. Um The problem here was that it's been identified, that instruction should be given to descend on how to descend from the war. And there was effectively an admission that no such instructions had been given. Um we mentioned earlier and earlier cases mentioned the Trustees of Portsmouth Youth Activities and Poppleton, that case, we talked a little bit about the fall of the young man from the climbing wall. Um the court, we should also say in that case made a point that there was an inherent risk of injury as a result result of voluntarily undertaken activity. And that the law did not require the occupier of the land that the activity occurred on to prevent an individual from engaging in that activity or to train or supervising while he did. And I think you can't do any better really than look at that case to see that the real sensible line to take for the occupier in these cases is simply to stand well back and not get too involved. Once there's an admission that instructions need to be given. The court will then expect to see those instructions given if they're not, the occupy may find themselves in difficulty. I think one area in occupiers liability cases that causes a lot of difficulty is warnings and the need, if you like to give or provide warnings. Um you know, occupiers can try and exclude their due to to a visitor. Uh Under Section two Sub 1 of the Occupiers liability act, but clearly they're sort of freedom to do. That is limited by things like the unfair Contract terms at 1977. Um You know, the court has always considered that in determining whether the occupier of premises has discharged the common duty of care to a visitor regard must be had to all the circumstances in the act. So for example, where damages caused to a visitor by a danger which he has been warned by the occupier. The warning is not to be treated without more as absolving the occupy from liability unless in all the circumstances, it's enough to allow the visitor to be reasonably safe. And you know, it's quite clear that if you like, regardless of contractual provisions. Um the course of course have always got the power to apportion liability between joint wrongdoers. So Section 2, 1 of the civil liability contribution at 1978 provides for that. Um just an equitable division. But the issue is, to what extent has the occupier got an obligation to provide warnings. And I think in terms of warnings, we have to ask some serious questions about what we mean by this, What kind of warning is going to be appropriate? How serious is the danger? How specific is the warning? Where is the warning? Is it too high? Is it too distant? The tone and import of the warning is always going to be relevant or warnings given casually might not cut the same ice as a written one. And then overall the test is, is the warning enough to allow the visitor to be reasonably safe? I think we can see in cases like Lewis and 1's worth where the claimant was walking with a friend on a designated path in the park and that path was located to the north side of a cricket pitch just outside the pitch boundary? Uh an amateur matches being played and sadly she was hit in the eye by a cricket ball. She brought a claim for damages against the local authority and finding in favor of the claimant. Originally, the recorder said the possibility of an incident and injury was extensive, given the location of the path and the pitch. Um he found the local authority owed a duty of care to the claim and under the Occupiers liability Act section two, but failed to exercise that duty by allowing pedestrians to walk alongside that boundary of the pitch. And he concluded the claim has been established primarily because the local authority had failed to display signs warning the claimant that game of cricket was in progress. The local authority appealed that decision, arguing that a warning wasn't necessary to discharge its duty under the act, and also arguing that the recorder had failed to give adequate weight to the claimants, evidence that she knew all about the cricket match and the proximity of the pitch, and that there were signs placed in the park when hazards were sufficiently significant and dangerous and that the local authorities evidence of lack of knowledge of previous uh, incidents like this was ignored if you like. On the appeal, the court took the view that the judge made a mistake in awarding damages to the claimant had been hit in the eye. The local authorities been under no duty said the court to warn those using the park, but a game of cricket was in progress or that a hard ball was being used. Um the court said there were three elements to this failure to warn firstly, failure to warn the claimant that game of cricket was in progress. The claimants acceptance that she knew about that knew where the pitch was, underlying belie that one secondly, a failure to warn hardballs being used. Again. The issue there was, if it was being played by adults, all in cricket whites, the claimant could have deduced for herself that it was likely to be a serious match in the hardball will be used. And then thirdly, that the local authority had failed to warn the claimant that the boundary of the path went alongside the pitch. Again, the court took the view that in this particular case it was obvious to her that that was the case. Um, failing to warn her, just didn't stand up to any kind of critical analysis and the claim was unsuccessful. I think one of the principles under the Occupiers liability Act that needs attention is the principle that valenti, you know, that section um, to five of the 1950 seven out says that the common duty of care does not impose on an occupier, any obligation to a visitor. The question of whether a risk is accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another. So were the risks willingly accepted? It was always a defense available to an occupier of the premises. And consequently the idea is that it was said in case called metal ship and Western actually by Lord Denning. Now that contributory negligence is not a complete defense, which of course was news then, but only a ground for reducing the damage is. The defense of Valenti has been closely considered and it's been severely limited. Knowledge of the risk is not enough nor his willingness to take the risk of injury. Nothing will survive short of an agreement to waive any claim for negligence. The claimant must agree to waive any claim for injury that may befall him due to a lack of reasonable care by the defendants. And I think we'll see in the next case the White Lion hotel case and James from 2021 just what that means in action. Um In this particularly horrible case, um hotel partnership appealed against the decision. It was liable for the death of a guest who had fallen from the window of his second floor room. Palm returning to his room after attending a wedding, he opened the sash window, sat on the sill probably to smoke or get some fresh air and because of a fault he had to hold the lower lash sash open in order to do so and then he fell from there to his death at the window sill was just 46 centimeters above the floor level and the modern modern standard in new buildings, the minimum height of 80 centimeters, very low opening window. Um There were charges against a conviction. Indeed, the hotel under the Health and safety at Work Act section three, accepting uh a criminal child following the accident. The appeal showed this. The hotel was liable under the act for the death of a guest had fallen from the upstairs window. The deceased decision to run an obvious risk did not outweigh factors which pointed to liability on the part of the hotel. Um Clearly, we know that the common duty of care relates to the visitor. Occupiers need to be prepared for Children to be less careful than adults, and occupiers must expect people in the exercise of their calling. We looked at this contractors may take their own risks, special risks and guard against any of those risks as far as the occupy leaves them free to do so clearly. Uh Judge's conclusion as to the existence of the appellant's duty to the deceased. Um The appellant was a lawful visitor and clearly foreseeable risk of serious injuries was possible due to the state of the premises. Um There wasn't a particular social value of the activity leading to the risk and the minimal cost of preventative measures were unassailable and provided a sound factual basis That the appellant breached its duty under section two. It would have been very, very cheap to deal with. The low windows just by placing window locks on the cost of a few pounds per window. Um And the real, even if relatively low risk of an accident was recognized by the criminal charges in the guilty plea in those criminal charges. So, you know, it's an interesting compare that with earlier cases in relation to falls from hotel windows where claimants have been unsuccessful in the past, a really useful and interesting case I think um whether the deceased accepted the risk, the court took the view that that wasn't the case. The deceased had chosen to sit on the window sill and did accept the risk if he went too far he might fall, but that didn't amount to valenti. There was no finding that the deceased knew and accepted the risk that being created by the appellants breach of duty or was deliberately absolving the appellant by his actions or waiving his right to sue clearly, um their findings provided a basis for determining of contributory negligence but not to go as far as valenti. Occupiers liability for the actions of visitors are draw your attention to the bosworth water trust case. And that case really concerned the duties owed by the operator and adventure golf course and the parents of a child causing injury to his party guest with a golf club. The risks were sufficiently foreseeable to import concurrent duties on both the operator and the parents. Um Bosworth was found to be liable. Uh huh in this particular case, but the parents were not bosworth water trust appealed at the adverse finding. They both appealed. Um and bosworth submitted, the judge imposed to hire standard on the water trust, amounting to a requirement to police the behavior of the players in the cricket and the golf match. The risks were so obvious that no warning was required and the need for a firm handling of the individual child who swung the golf club was known to his parents but not capable of being known to the Water Trust. Um The appeal of the bosworth Water Trust was dismissed. Uh The court said either a rule should have been in place as regards safe use of the golf clubs or if bosworth had carried out a risk assessment, it should have done, it would have appreciated the risk and therefore would not would have gone on to post some kind of warning to mitigate those risks. As was noted by the first instance judge. A risk assessment was in fact undertaken after the incident, revealing the risk of a personal injury to players by the inappropriate use of equipment. And in fact, there was a warning posted by the water trust after the accident. The risk was reasonably foreseeable. The claimants appeal to the parents was allowed and it was submitted that the parents of the boys swung the club had primary responsibility for supervising him and his friends. And if the water park was to be held liable for failure to warn or supervise so must the parents, um the boy's mother told them to keep their distance but didn't in terms specify not to swing the putters. The remaining question was therefore whether the boy's mother by failing to instruct the boys not to swing the putters was in breach of the duty she owed to the boys. She knew that the occupiers had given no instructions. If this was the case, she was not going to directly accompany and supervise the boys. There was a heightened requirement, the clear safety instructions and his mother knew of his boisterous and impetuous nature. Um the minimum requirement was a clear instruction not to swing the putters clearly, then the common duty of care relates to the visitor and so we see that we would expect um occupies to be aware Children are less careful than adults, you know what standards of school are expected of schools to protect students, especially in the excitement of api lesson and in public and russell, we saw a little bit of this. Um after getting changed the claimant and other pupils ran from the changing rooms to the hockey fields. The route was along the footpath, she deviated from the path onto a muddy patch of grass and she fell sustaining a serious injury to her elbow at the trial. The case was the defendants failed to protect her, she was outside of the teachers, she'd been encouraged to run. The main dispute was, had she slipped on the mud or on the curve. The claim clearly was dismissed. The judge held the defendant wasn't negligent in allowing pupils to run and she probably tripped on the curb on appeal. The judge noted the enhanced duty which schools are to those in their care and even that however, didn't go to reducing the risk to the lowest level recent, reasonably practicable. There existed some situations where no reasonable school would allow pupils to run. Another situations where a school would allow them to run discretion needed. We've heard all this before, I think, and in those circumstances the court should be slow to substitute its own judgment on the evidence. The judge at first instance was entitled to conclude they had not been any negligence on the part of the school was an experienced teacher knew the Children and had made a reasonable assessment of those risks. And I think there's a whole run of those school cases where you can see that same thinking, just to say lastly case, of course, to find where the Kochs regime applied in the main claim, but not to the third party proceedings. A successful defendant would not be able to enforce its costs order against the claimant. And so the cost of the third party proceedings would lie where they fell. I think that's particularly relevant in cases where you've got multiple defendants. Um, claimants in certainly in occupies liability cases often will um, you know, clearly we can see that a pre 2013 cF. A will not provide cox protection against the named or intended defendant and parties joining personal injury lit after 2013 will be facing a claimant with the benefit of quarks. Part 20 defendants can only look to the first defendant, Part 20 claimant for its costs if they win. And I think in terms of the difficulties we've seen in these cases, that that has to be right. Um, thank you so much for listening. I hope it's being useful and uh, once again, thank you very much.
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