Tort Law
Extract 1 : Liability
of FFL in respect of broken leg at construction site
Extract 2 : Liability
of FFL in respect of carousel injury and damage to property
Extract 3
: Liability of the Globe newspaper
Liability of FFL in respect of broken leg at construction site
The boy whose leg was broken may have a claim in negligence against the Defendant FFL for injury caused by breach of their Occupiers Liability in Statute or Common Law.
Visitor or non-visitor?
FFL could either be liable under the Occupiers' Liability Act 1957 (OLA 57),
or the Occupiers' Liability Act 1984 (OLA 84) depending upon whether the injured
child is classified as a visitor or a non-visitor. On the facts, "the boys
broke away from the party and climbed over a chain link security fence… (that)
had a large red sign stating 'Danger Construction Site - Keep Out". It is
therefore highly likely that the injured boy would be classified as a trespasser,
thus OLA 84 will apply.
Definitions
"Premises"
for the purposes of OLA 84 are defined as set out under S.1(3)(a) of OLA 57, namely
"any fixed or moveable structure, including any vessel, vehicle or aircraft".
On the facts, "a barn" would clearly fall within the definition as it
is a fixed structure.
"Occupiers" for the purposes of OLA 84 are
defined as set out under S.1(2) of OLA 57, namely persons having "occupation
or control of premises". On the facts, FFL would clearly fall within the
definition as they have control of the barn.
"Visitor" for the purposes
of OLA 84 are defined as set out under S.1(2) of OLA 57, namely persons having
"invitation or permission… to enter or use the premises". On the facts,
the injured boy would clearly fall without the definition as the sign on the fence
makes it clear that no invitation or permission to enter or use the construction
site is given. He is therefore a non-visitor.
Heads of loss
If the injured boy wishes to take action against FFL he will most likely do it
via an adult protecting his interests, namely a "litigation friend".
The appropriate head of loss under which a claim will be made will be personal
injury for the broken leg. In order to make a successful claim, the Claimant must
prove that an established duty of care was owed by FFL, that the extent of the
duty was sufficient for the injury caused, that the duty was breached, that the
loss was foreseeable and that there was a causative link between the breach of
duty and the loss incurred. Any defences likely to be raised by the Defendant
FFL must also be overcome by the Claimant.
Was a Duty of Care owed by
FFL to the Claimant?
Under S.1 of OLA 84, an occupier will only owe a
duty of care to a claimant provided a three point test is satisfied:-
- Under S.1(3)(a), the occupier must be someone who "is aware of the danger or has reasonable grounds to believe that it exists". On the facts, the barn is "being renovated to be a new visitor attraction", is surrounded by "a chain link security fence" and has "a large red sign" stating the danger. The occupier FFL clearly falls within this provision.
- Under S.1(3)(b), the occupier must be someone who "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". On the facts, the renovation work, the presence of the fence and the sign indicate that the occupier FFL clearly falls within this provision.
- Under S.1(3)(c), the risk must be "one against which, in all the circumstances of the case… (the occupier) may reasonably be expected to offer the other some protection". On the facts as stated above, the risk clearly falls within this provision.
What is the
Duty?
Under S.1(4) OLA 84 the occupier's duty is to ensure that the
non-visitor "does not suffer injury on the premises by reason of the danger
concerned". It is interesting to note that this duty replaces the earlier
uncertain "common humanity" principle which was a duty not to wilfully
harm or have a reckless disregard for a non-visitor, as per an earlier decided
common law case.
What is the extent of the Duty?
Under S.1(9)
OLA 84 the duty extends to injury which "means anything resulting in death
or personal injury, including any disease and any impairment of physical or mental
condition". On the facts, a broken leg such as that sustained by the injured
boy is a personal injury and an impairment of physical condition.
Breach
The potential breach of FFL's duty is a failure to ensure that the non-visitor
did not suffer injury on the construction site as a result of the dangers therein.
However, under S.1(5) OLA 84, "any duty owed by this section in respect of
a risk may, in an appropriate case, be discharged by taking such steps as are
reasonable in all the circumstances of the case to give warning of the danger
concerned or to discourage persons from incurring the risk". On the facts,
the barn is surrounded by "a chain link security fence" and has "a
large red sign stating 'Danger Construction Site - Keep Out'". The discharge
of duty is governed by an objective test. It is submitted that the duty owed by
FFL here probably has been discharged. However, a relevant issue will include
the fact that the children "were left with minimal supervision". Whether
this was the fault of FFL or their employee Shazia, or whether it was the fault
of the school staff will be a factor in deciding if the duty was discharged. A
comparable case may be the case of Ratcliff v McConnell1 in which a college had discharged their duty with the use of a locked gate and
a warning notice protecting an outdoor pool. A student sustained a broken neck
from disregarding the gate and notice and diving into the shallow pool. Action
for damages failed as it was deemed that the college had discharged their duty.
Causation
of harm
Two types of causation must be established by the Claimant
who must prove them on the balance of probabilities. The first is factual causation
which is established with the use of the "but for" test as developed
in the case of Barnet v Kensington 2. The question
to be addressed by the court is "but for the dangerous construction site
and the ladder on which the injured child was climbing, would his leg have been
broken". If the answer to this question is negative, factual causation is
established. If it is positive, factual causation is not established. It is relevant
to consider the potentiality of joint controllers here. It is uncertain on the
facts who is performing the renovation work. If it is FFL, no question arises.
If, however, the work is delegated to independent contractors, it is possible
that there would be difficulty in deciding who was the controller of the construction
site where the injury occurred. Failure to establish the controller is significant
in that an action will fail.
The second type of causation is legal causation as developed in Wagon Mound. This test depends upon the Claimant proving that the type of harm was foreseeable. This is an objective reasonableness test. It is submitted that the test will probably be proven for the former, but not for the latter: while the injured boy's leg would not have been broken if the construction site containing the ladder was absent, it was perhaps unforeseeable that a schoolchild would ignore the sign, scale a chain link security fence and climb the ladder. The point is moot.
Defences
Volenti
The
Defendants FFL will try to prove that the injured Claimant was "volenti"
which will be established if it can be shown that the injured boy knew the precise
nature of the risk and moreover fully agreed to forego the legal risk. This is
covered by S.1(6) OLA 84. Additional relevant factors include the notice which
can turn a visitor into a non-visitor. The prominent notice on the fence as discussed
above would probably have this effect. If FFL are successful in relying on this
defence, it is a 100% which means they will bear no liability whatsoever.
Exclusion
of liability
A good lawyer would further advise FFL to check whether their
entrance ticket or any notices on their premises contained a clause designed to
exclude their liability. There is room for argument here as there is no decided
case as to whether or not applies under OLA 84.
Contributory negligence
The Defendants FFL will try to prove that the injured Claimant contributed to
his injury via negligent behaviour which will be established if it can be shown
that the injured boy failed to take reasonable care of himself and that the lack
of care contributed to either the fact of his loss, the extent of his loss. This
defence is governed by the Law Reform (Contributory Negligence) Act 1945. One
caveat here however is that it is extremely rare to find children have contributed
through negligence as per the case of Yachuk v Oliver Blais 3.
It is therefore unlikely to apply.
Conclusion
FFL may be found
liable in the tort of negligence due to breach of occupiers' liability. Whether
or not they are found liable will depend on the Court's decision as to the factors
discussed above.
- Ratcliff v McConnell [1999] 1 W.L.R. 670[^ Return]
- Barnet v Chelsea and Kensington Hospital Management Committee [1969] 1 Q.B. 428; [1968] 2 W.L.R. 422[^ Return]
- Yachuk v Oliver Blais [1949] A.C. 386 [^ Return]
Bibliography
CASES:
Barnet v Chelsea & Kensington Hosp. MC [1969] 1 Q.B. 428;
[1968] 2 W.L.R. 422
Glasgow Corporation v Muir [1943] A.C. 448
Haseldine
v CA Daw & Son [1941] 2 K.B. 343
Newstead v London Express [1940] 1 K.B.
377
Ratcliff v McConnell [1999] 1 W.L.R. 670
Ratcliff v McConnell [1999]
1 W.L.R. 670
Sim v Stretch [1936] 2 All ER 1237 at 1240
Yachuk v Oliver
Blais [1949] A.C. 386
Capital and Counties Bank Ltd v Henty & Sons (1882)
7 App. Cas. 741
UK LEGISLATION:
The Law Reform (Contributory
Negligence) Act 1945
The Occupiers' Liability Act 1957
The Occupiers'
Liability Act 1984
Extract 1 : Liability
of FFL in respect of broken leg at construction site
Extract 2 : Liability
of FFL in respect of carousel injury and damage to property
Extract 3
: Liability of the Globe newspaper
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