Occupiers Liability Act 1957 - Essay Example

1. The issue in this question requires an analysis of Occupiers Liability Act 1957 and 1984. The Acts have not defined what an occupier means, the only decisive element is that there must be control of the premises. A detailed discussion in respect an occupier was provided in the decision of Wheat v Lacon1. In respect of the facts at hand it is evident that Eric is the owner of the museum and has sufficient control over the premises to be considered as an occupier. Occupiers Liability Act 1957 deals with lawful visitors as described in s.1(2) whereby a common duty of care is owed to such visitors. The status of the entrant is quite easily that of a lawful visitor where it is due to an express provision. It has been held by Scrutton LG that ‘when you invite a person into your house to use the stairs, you do not invite him to slide down the banisters’. In respect of Florence the situation is quite clear as she was a lawful visitor and the warning clearly did not restrict access to the place. In respect of the common duty of care section 2 of the OLA 1957 provides that ‘an occupier of premises owes the same duty, the common duty of care to all his visitors except in so far as he is free to and does extend, restrict, modify, or exclude his duty to any visitor or visitor by agreement or otherwise’ and ‘the common duty of care is a duty to take such care in all circumstance of the care is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invite or permitted by the occupier to be there’. The duty was described by Lord Denning in Wheat as ‘simply a particular instance of the general duty of care which each man owes to his neighbour’. In respect of Florence it is clear that a common duty of care was owed to her by Eric whereby care should have been taken. The defences that are available in accordance with relevance would be that of section 2(3) whereby there is a defence of contributory negligence. A further defence is that of warning which if duly posted would lead discharge of duty of care or contributory negligence would come into play. In London Graving Dock Co. v. Horton2 it was held by the House of Lords where the significance of warning was recognized by the visitor then the liability of occupier would be absolved. However, s.2(4)(a) stated that all circumstances should be taken into consideration and a warning in itself should not be used to automatically exclude liability(Phipps v. Rochester Corporation)3. Where there is existent an excessive amount of danger then additional precautions should also be undertaken by the occupier. In respect of the facts at hand clearly there was a possibility of injury being caused and this should have been thought of by Eric when getting the installation done. Furthermore, in respect of Florence since she was a lawful visitor and a duty of care was owed to her, warning in itself would not constitute to be exclusion of liability of Eric and therefore added precaution should have been taken. In lieu of the facts, Florence can claim for the injuries she has suffered and in respect of the broken glasses she can claim under the contract whereby loss to her has been caused. The only element whereby it can be argued is the fact that Coolit were hired as independent contractors by Eric, however, in that respect all necessary steps should have been undertaken by Eric so as to avoid any harm being caused to anyone, In respect of George a discussion on Occupiers Liability Act 1984 needs to be made. The Act deals with people who enter a trespasser. A duty would fall on the Occupier if three requirements as laid down under s.1(3) of the Act are satisfied. Firstly there must be awareness of danger by the occupier or reasonable ground to believe of its existence. Second, knowledge or reasonable grounds to believe that entrant is within vicinity of the danger or that he may enter into vicinity, finally, ‘the risk is one against which in all the circumstances of the case, and he may reasonably be expected to offer the other some protection’. The position in respect of the requirement remains unclear and the decision in White v. St Albans has not helped either. The first two requirements can be said to be objective while the third one can be seen as objective. In respect of the facts at hand it can be said that Eric was aware of the danger and therefore had placed the warning sign. In respect of the second requirement, the question depends on the amount of care taken so as to ensure that no one entered from the back doorway. If it is seen that that was not present and by the facts it can be said that Eric must have thought of trespasser entering from the doorway, therefore the requirement would be satisfied. In respect of the final provision, clearly there was a risk to which protection must have been offered to everyone else and therefore George can claim under the Occupier Liability Act 1984 for the injuries caused. However, the new suit being ruined cannot be claimed for in respect of the Act and since there was no contract between the parties it can be safely said that George would not be able to claim for the ruined suit. 2. The issue in this question requires an analysis on the law of defamation, the liability of Daily Scum, if any and the possible defences that are available to itr. The Faulks Committee recommended the definition of defamation as follows ‘ Defamation shall consist of the publication to a third party of matter which in all circumstance would be likely to affect a person adversely in the estimation of reasonable people generally.’ The effects of defamation need not have been ascertained before hand by the defendant and as put by down by Russell LJ it is the act which matters (Cassidy v. Daily Mirror Newspapers Ltd.)4. The test stated by Lord Devlin was the effect on ordinary man (Rubber Improvements Ltd .v Daily Telegraph Ltd.)5. The elements required to establish liability under defamation would now be discussed. The allegation must be defamatory. A straightforward allegation of dishonesty or immorality or any other conduct which is dishonourable is clearly defamatory. The courts construe the entire wording and construe the remarks accordingly. (Liberace v. Daily Mirror Newspapers). It has happened that the entire text is considered not to be defamatory and some wordings in isolation would constitute to be defamatory. (Charleston v News Group Newspapers Ltd.)6. Innuendos have also formed an important part of defamation. (Tolley v. J & S Sons Ltd.)7. The external facts have been said to be irrelevant. (Cassidy v. Daily Mirror Newspapers Ltd.)8 Innuendos also include what is known as false innuendo whereby the claimant has to prove that that awareness or knowledge was present to the person to whom it was made. (Lewis v. Daily Telegraph). The task of deciding defamation is left for the jury to decide. In respect of Bill it is clear that a defamatory remark has been made of him being deported and therefore this condition would clearly be satisfied. In respect of Evangeline she can argue that a defamatory remark of her age has been made and the fact that it was an innuendo which she would need to prove and clearly on the fact she has a possibility of establishing a defamatory remark, however, since it is a children’s article she would need to establish the requirement of a false innuendo. The second element that needs to be decided upon is the requirement that the defamatory statement must specifically refer to the claimant. (Aspro Travel Case c. Owners Abroad Group Plc)9. In respect of this requirement it is evident that the remark in respect of Enageline and Bill were clearly in respect of them and were addressed against them and therefore no further elaboration on this point would be made. The next element is that of publication which was described by Lord Esher MR in Pullman v. W.Hill & Co. Ltd.10 whereby it was stated that ‘the making known of the defamatory matter after it has been written to some person other than the person of whom it is written. In respect of this requirement it is clear that there has been publication in the article. Thus in respect of Evangeline and Bill there has been defamation but clearly there are defence that are available to Daily Scum and these would now be discussed. Unintentional defamation does not itself absolve the liability of the defendant, however, section 4 of the Defamation Act 1952 states that for an unintentional defamation offer for amends can be made, which if accepted would lead to the end of dispute. Thus Daily Scum can make an offer for amends. The other defence that lies is that of consent, which on the facts cannot be seen and therefore would not be applicable. Justification of truth is a defence, however, common law tends to favour the claimant whereby he merely needs to prove that the statement was defamatory rather than false. air comment is another defence, which is left for the jury to decide. However, on the facts at hand it would be really difficult to establish and is more than likely to fail. The defence of public interest is there which will not be discussed as it is not applicable to the facts at hand .The defence of absence of malice also relevant however, in respect of the facts, it can be on the balance of probability there can be shown that a malice existed in respect of the facts at hand. In lieu of the facts above there has been defamation against both, Bill and Evangeline and there are no defences that are available to Daily Scum. The problem requires an analysis of interference with persons that is assault, batter and false imprisonment. Each of these would be discussed and related to the facts accordingly. The tort tends to prohibit actions which are intention that threaten violence, or to rephrase, which leads a claimant to have a reasonable expectation of immediate, unlawful force. (R v. Beasley)11. Assault is actionable per se. The threat in respect of assault must be immediate force. If an unloaded gun is pointed and the claimant is unaware of it being unloaded that is common law assault. However, words themselves do not constitute to be assault. (Mead’s v. Belt’s case)12. Menacing gesture along with threat have been held to be assault. (Read v. Coker)13. In respect of the actions of Peter shouting and having a knife in his hand, it can be said that there was an apprehension whereby Oliver had reasonable expectation of immediate unlawful force. Thus in respect of that there can be said to be an assault that has been committed by Peter against Oliver. In respect of batter it is said to be direct act whereby the defendant causes an unlawful and undesired contact of the claimant. There must be intention. This contact can be nominal only ‘the least touching of another in anger is a battery’ (Cole v. Turner)14. Another requirement is that the contact must be direct (Dodwell v. Burford.)15. Intention should not necessarily be present at the time of commencement and can be formed while the act is in continuation (Fagan v. Metropolitan Police Commissioner)16. In respect of Oliver throwing the watch even though it can be said that there has been contact at that point in time there was no intention and therefore battery was not present. In respect Peter the punch could have been said to be a reaction, however the continuing act of striking by Oliver, with his fist would be said to be the requisite intention whereby Olivier passed out. Therefore the requirement of battery would clearly be satisfied and Peter would be held liable for battery.\ False imprisonment has been defined as complete restriction on the freedom of movement of a person without any lawful excuse or justification, which is a tort actionable per se. According to Termes de la ley ‘imprisonment is the restraint of a man’s liberty, whether it be in the open field, or in the stock, or in the cage in the streets or in a man’s own house, as well as in the common gaole’ the knowledge of imprisonment of plaintiff at the time of confinement is not necessary. The restraint must be complete. In respect of the actions of Susan it can be said that her act of locking the door could be argued to be unlawful imprisonment. Knowledge of Peter in this respect would not be necessary and on the fact it is a complete restraint. However, the only problem that lies in respect of the question is the fact that there was a lawful excuse which was that Susan called the police so that appropriate action in respect of the assault and battery could be taken. Furthermore, another argument that could be raised in respect of lawful excuse would be the fact that she prevented Oliver from escaping the said scene and therefore such imprisonment was justified on that basis. On the basis of the facts that have been provided it would therefore not be considered to be false imprisonment as lawful excuse in this respect was present. Thus clearly, there has been imprisonment on the facts at hand there are a number of lawful excuse as well as justification present which would tend to tilt the balance in favour of Susan whereby she can avoid any liability in respect of the imprisonment and would not be held liable for her actions. References WILD, C., WEINSTEIN, S., SMITH, K., & KEENAN, D. J. (2010). Smith and Keenan's English law: text and cases. Harlow, England, Longman DEAKIN, S., JOHNSTON, A. C., & MARKESINIS, B. S. (2008). Markesinis and Deakin's tort law. Oxford, Oxford university press. ELLIOT, C., & QUINN, F. (2005). Tort law. Harlow [etc.], Pearson Longman FINCH, E. (2007). Tort law. Harlow, England, Pearson Education HORSEY, K., & RACKLEY, E. (2009). Tort law. Oxford, Oxford University Press HARPWOOD, V. (2009). Modern tort law. London, Routledge-Cavendish MCBRIDE, N. J., & BAGSHAW, R. (2005). Tort law. Harlow, England, Pearson/Longman WEIR, T. (2002). Tort law. Oxford, Oxford University Press Read More