Contract Law - British Railways Board v Herrington - Article Example

Law of Contracts William was an eight year old boy, who had entered the premises to play with his friends. The Burly Contracts had failed to fence in a freshly dug trench on the premises. William fell into this trench and caused himself considerable injury. In Harris v Birkenhead Corporation, it was held that the contractors had a duty of care, which they had failed to fulfil. Thus the contractors were liable for the damages caused to the injured due to their breach of the duty of care. The court also found that the contractors had failed to take proper measures to safeguard children for which they were held liable. Although the contractors knew that children used their premises as a playground, they had not initiated any steps to ensure the safety of children (Harris V Birkenhead Corporation). The court ruled in British Railways Board v Herrington that occupiers were under an obligation to fulfil the duty of common humanity towards those who had trespassed onto their premises; this had been specified in section 1 (1) (a) of the Occupiers Liability Act 1984. Furthermore, section 2 (4)(a) of the Occupiers Liability Act 1984 established that display of a warning board is not a valid measure, if there was no protective fencing, safeguard people entering the premises. Under section 2 (3) (a) of the Act, occupiers have to take greater care of children than adults (British Railways Board v Herrington). In Harris v Birkenhead, a four year old child fell from the upper floor window of an abandoned house, while playing. This caused him grievous injuries. The authorities of the Council had neither displayed any warning boards at the abandoned house nor had they demolished it. The Council also failed to secure the doors and windows. The Court of Appeal held that the abandoned house constituted an alluring place for children to play, while being hazardous at the same time. Further, the Court held that the Council had failed to take any precautionary measures to avert danger to children, with the result that the child’s death had transpired. The Court issued guidelines to the occupiers of lands and houses to consider the possible dangers, including hidden dangers, to trespassers (Harris V Birkenhead Corporation). The Court further extended the scope of the duty regarding trespassers by adding the duty of common humanity in the case of British Railways Board v Herrington. In this case there was a playground adjoining the railway premises. Children used to play in the railway yard and generally gained entry through a hole in the fence. The Railway Board knew about the damaged fence and the fact that children frequently intruded into its premises through the holes in the fence. All the same, the railway authorities did not take any precautionary measures in this regard. The defendant had also intruded through the hole and went to an electrified railway line, where he was electrocuted. The Court of Appeal held that the railway authorities owed a common duty of humanity and held the railway authorities responsible for the electrocution of the child. The occupiers of the property were under an obligation to act with humanity towards trespassers. They were expected to apprehend the hidden dangers to trespassers, on the basis of their knowledge, ability and resources (British Railways Board v Herrington). In Pannett v McGuinness, the defendants were demolition contractors. They were in the habit of burning the rubbish of the demolition at the site itself. They employed three workers to supervise the burning activity and to prevent children from trespassing on their site. The plaintiff, Pannett, who was five years old, entered the site, while the supervising workmen were absent and fell into the fire. The Court held that the defendants were guilty of having failed to take adequate measures to restrict children from trespassing into their site even after coming to know that children frequently entered their site (Pannett v. McGuinness & Co. Ltd). The duty owed by an occupier towards trespassers had been deemed to be less than that owed due to a duty of care. For instance, in British Railway Board v. Herrington it had been considered to be a duty of humanity. This case dealt with the electrocution of a six year old boy, who had been crossing a railway track, owned by the defendant. He had reached the track by entering the area, through a hole in the fence, which had bordered the railway track. This fence had been in a state of disrepair, for quite some time; and the station master had paid scant regard to this occurrence. The station master, despite being aware of the fact that this gap in the fence was being utilized regularly by children, initiated no measures to curb this practice (British Railways Board v Herrington). Although the plaintiff had been a trespasser, the House of Lords decided that he could recover in negligence. In this context, Lord Pearson, opined that vast changes had taken place in socio – economic conditions, which made it imperative to reduce the troubles faced by trespassers by setting aside the previous rules. His Lordship also opined that it was essential to consider trespass in accordance with section 1 of the Occupier’s Liability Act 1984, which applies to non – visitors and specifically to trespassers (British Railways Board v Herrington). Moreover, Burly Contracts had placed a sign that had warned parents about the danger inherent in those premises due to the construction work taking place there. In other words, they were aware of the fact that children were trespassing on the premises, in order to play. Therefore, according to section 2(3)(a) of the Occupiers Liability Act 1957, Burly Contracts had to exercise extra caution, because it was to be expected that children would display greater curiosity than adults and would be lured to a greater extent to explore and play in the premises. In Lethan v. Johnson and Nephew Ltd, the court had held that there may be a duty to abstain from leading a child into temptation (Latham v. R. Johnson & Nephew Ltd). In Rae v. Marks UK the court opined that if the danger was out of the ordinary, then the occupier had to barricade the area in which the danger was present, in addition to displaying a proper notice regarding the same (Chigbo, 2006). According to the Occupiers Liability Act 1984, the display of a warning board is deemed to be an inadequate measure, in the absence of protective fencing for dangerous areas on the premises. Since, children, due to their immaturity will be tempted to play in deserted places, the mere display of a notice, that warns the parents is of not much significance in protecting children. Hence, the Burly Contracts is liable for the injury sustained by William. The statute, namely the Construction (Head Protection) Regulations 1989 enjoins that there should be suitable to the head and that safety helmets should normally be worn, if there is danger of sustaining an injury. Injury can be caused by falling building materials like bricks, or due to collision with low scaffolds. Therefore, it is essential to provide employees with safety helmets and to specify the manner in which these are to be used. The only exceptions, in the UK, are members of the Sikh community, who are exempted from wearing safety helmets, provided they wear turbans. Such helmets are to be worn, without fail in hard hat areas of construction sites. Moreover, the Construction (Head Protection) Regulations 1989 empower the contractor to enforce the required rules regarding the use of safety helmets, in specific areas. Furthermore, such rules are applicable to each and every person at the construction site, and include visitors also. These rules have to be in writing and every person who will be affected by them has to be apprised of them. The objective of these measures is to ensure that each and every person at the construction site is aware of when and where the safety helmets are to be used. Specifically, regulation 4 of the Construction (Head Protection) Regulations 1989, requires employers and others who have control on those present at the construction site to make certain that safety helmets are used at the work site. Regulation 5 empowers the formulation of rules regarding the wearing of protective gear for the head. Regulation 6 makes it mandatory for workers in construction sites to wear protective head gear. Mr. Green had failed to wear protective head gear, with the result that he sustained injuries. According to regulation 5, Burly Contracts should have directed Mr. Green to wear the safety helmet. The failure of the Burly Contracts to do so, makes it liable for the injuries caused to Mr. Green. Section 2(1) of the Occupiers Liability Act 1957 requires the Burly Contracts to ensure that visitors to the premises are reasonably safeguarded against harm. In this context, it is to be noted that it is the visitor, whose safety has to be ensured and not the premises. Therefore, the Burly Contracts is liable for the harm caused to Mr. Green, an inspector with the local authority, while he was examining the construction work. The contractor is clearly liable for this harm caused to Mr. Green. This was the decision in Ferguson v. Welsh, wherein the contractor was held liable for the damage caused to visitors (Ferguson v. Welsh ). There are two types of nuisance, public nuisance or private nuisance. A nuisance can be a public nuisance or a private nuisance or both. Nuisance may not be continuous. Occasional nuisance can also be subject to legal action. Therefore, those who create nuisance or adopt nuisance will be held liable for legal action and can be prosecuted. In the case of Attorney General v Tod – Heatley, the defendants owned a piece of abandoned land. People use this land for dumping their household rubbish and waste materials. The defendants had eructed a hoarding on the land which stated that the piece of land was a dumping ground for dead dogs and cats, vegetable refuse, fish, offal, rubbish and all kinds of filth. On a public petition, the court ruled that this land would act as a health hazard on public health. The court had issued an injunction order to stop dumping immediately (Attorney General v Tod-Heatley). Public rights, or public health, safety and convenience should be respected by everyone. There should be no hindrance to the exercise of these rights, either through interference or the misuse of authority. Therefore, the claimants while seeking a redress in tort, are under an obligation to prove that they incurred loss or suffered damage that was in excess of what had been undergone by the remaining public. This was established in Attorney General v. PYA Quarries, wherein, the Attorney General initiated action to prevent the defendants from detonating explosives. The court issued an injunction to that effect, because these detonations by the defendants were raising clouds of dust, engendering noise pollution and producing tremendous shock waves. This had become a continuous nuisance to the public, residing in the vicinity. The defendants lodged an appeal petition in which they argued that their blasting operation were to be construed as private nuisance and not public nuisance. The court turned down the appeal, by maintaining that any nuisance constituted a public nuisance if it affected the comfort of at least a dozen of Her Majesty’s subjects (Attorney General v PYA Quarries). A nuisance may constitute a public nuisance. Therefore a third party whose lawful rights with regard to a specific property have been hindered can sue the perpetrator by initiating a private action. The court had clearly established this principle in Rose v Miles. In this case, the court ruled that the defendant had caused an obstruction to a riparian passage and that he was, consequently, liable for compensating the damages caused to the plaintiff (Rose v Miles). The decisions by the courts, with regard to public nuisance, enable the surrounding property owners and tenants to bring cases before the courts, in order to prevent public nuisance. Such aggrieved parties can seek an injunction order from the courts. In addition to this, they can sue the perpetrators for having created nuisance, which had affected the legal rights of their properties. Therefore, Mrs. White has to be reimbursed by Burly Constructs for the mental anguish caused to her by the construction noises and the possible damage caused to her cottage due to the excavations. In addition, she can obtain an injunction from the court to prevent Burly Constructs from making this terrible noise and excavations. In the course of construction activities, liability of the contractor to a third party may arise, as a consequence to the damage caused to the property or person of that third party. In Ellison and Headlong v. The Ministry of Defence, the land situated adjacent to the Greenham Common air field was submerged under water. This airfield constituted a NATO air base for B52 bombers. This airfield had a taxi way that was held to be the longest in Europe. Accordingly, there was a very large amount of concrete construction on the airfield. This required the installation of a complex drainage system on Greenham Common (Ellison and Headlong v. The Ministry of Defence ORB). The Ministry of Defence commissioned works for the construction of utilities that would store aviation fuel. In addition, a number of roads and other buildings were to be constructed. All this entailed massive excavation and disposal of soil. Whilst these construction projects were in progress, a remarkably strong summer storm was experienced in this place. In the valley adjacent to the airfield, there were two families, namely the Ellisons and the Headlongs, who conducted their businesses in that place. On seeing the flow of water rushing through her back door, Mrs. Ellison attempted to stem the flow, but to no avail. Afterwards, it was evident that enormous damage had been rendered to her property. Her car had drifted far away and some of her belongings were located a mile from her house (Ellison and Headlong v. The Ministry of Defence ORB). These families claimed damages from the Defence Ministry, contending that the excavation work at the airbase had disrupted the natural drainage system, leading to these floods. Their contention was based upon the decision in Rylands v. Fletcher, wherein the court had stated in its verdict that anything kept on one’s premises, which had the capacity to cause damage on being let loose, would make such a person liable. In addition, the court opined that any damage caused in this process, would render such a person liable for the loss so caused. In this case, flooding of the claimant’s mine workings occurred due to the collapse a well that had been dug by the defendant. Even though, the defendant could be considered to have exercised proper care in digging the well, the court held that a person who brings something onto his land, which is capable of causing harm, is liable for any damage caused to his neighbours. In this manner a tort of strict liability is created by this judgment (Rylands v. Fletcher). In Cambridge Water Company v. Eastern Counties Leather plc, the House of Lords clarified that the rule established in Rylands v. Fletcher was applicable to what was modified or brought on to the land and not to what had already been present on it (Cambridge Water Company v. Eastern Counties Leather plc). In addition, the principle of an artificial or non – natural use of land was established in Rickards v. Lothian, wherein it was held that the Rylands principle would be effective only if the land was so used as to enhance the danger to the other members of the community (Rickards v Lothian). The M&E Engineering Objective was located adjacent to the place where the Burly Contracts had commenced their construction activities. These contractors had constructed a swimming pool, but had failed to provide it with any outlet in the event of sudden flooding. The result was that the basement of the M&E Engineering Objective was flooded with the overflowing water in the swimming pool. This caused considerable damage to the goods stored in that place. The Rylands principle clearly establishes in this case that the Burly Contracts had modified the land, by indulging in acts that clearly proved to be dangerous to others. Moreover, the land had been modified with this harmful modification, which had not been existent upon the land from the beginning, thus the condition of the Rickards v. Lothian case was also satisfied. Hence, the Burly Contracts is liable to compensate the damage caused to the M&E Engineering Objective. List of References Attorney General v PYA Quarries, (1957) 2 QB 169. Attorney General v Tod-Heatley, (1897) 1 Ch 560. British Railways Board v Herrington, (1972) AC 877.. Cambridge Water Company v. Eastern Counties Leather plc, (1994) 2 WLR 53. Chigbo, C. (2006, April 21). The Occupiers Liability 1957. Retrieved March 14, 2008, from http://www.jonesbahamas.com/?c=135&a=8526 Ellison and Headlong v. The Ministry of Defence ORB, (1997). 7 Bliss 13. Ferguson v. Welsh , (1987) 1 WLR 1553.. Harris V Birkenhead Corporation, (1976) 1 WLR 279 (CA). Latham v. R. Johnson & Nephew Ltd, (1913) 1 K.B. 398. Pannett v. McGuinness & Co. Ltd, (1972) 3 All E.R. 137. Rickards v Lothian, (1913). AC 263. Rose v Miles, (1815) 4 M&S 101. Rylands v. Fletcher, (1868). LR 3 HL 330. Read More