Occupiers Liability Act - Essay Example

Case Study The main questions that arise in the context of this case study are: (a) Does Mercedes have a valid cause of action to sue the park for injury to her leg? (b) Can Mercedes recover damages from the Park for the destruction of her expensive piece of equipment? (c) Do Francois and Leo have cause of action to sue Friendly Park for supply of defective equipment? Occupier liability: In assessing whether Mercedes had valid cause to sue, legislation that will apply is the Occupiers Liability Act of 1957.1 Friendly Dude Holiday Park will be the occupier – a party in a position to exercise sufficient degree of control over the premises2. Occupier liability3 was first spelt out in the case of Stevenson v Glasgow Corporation4 where Lord M’Laren explained that “precautions which have been rejected by common sense as unnecessary and inconvenient are not required by law.” This position was recently cited by Lord Hutton in the case of Tomlinson v Congleton Borough Council5 where the defendants were not held liable for Tomlison’s injuries, because the injury had come about due to Tomlinson’s choice to undertake a dangerous activity rather than because the premises were dangerous. However, there is a common duty of care6 on the occupier to ensure his premises are reasonably safe at all times.7 If any danger exists, it is the duty of the Occupier to post signs warning of the danger and this can satisfy the duty of care expected8. In the case of the Park, due signs were posted and therefore, visitors to the park were duly warned they were using the facilities at their own risk. Occupier liability will be limited by the element of foreseability of accidents. In the case of Cunningham v Reading9 loose tiles on the terrace were the cause of police injury, for which the Occupier was held liable, because this was an instance where injuries were foreseeable and chances of occurrence were also higher, therefore the Occupant was held liable. This may also hold good in the case of the Park, because three aspects must be noted (a) the signs warning of the risk were corroded and unreadable and therefore practically non existent (b) Exclusion clauses, waiving liability, must be clearly communicated - if they are printed on the back of a ticket or communicated indistinctly, they will not be valid10 (c) the element of foreseeability of accident was high due to the nature of the facilities. Moreover, the Park may also face difficulties on the issue of maintenance of the slides, since they collapsed with the weight of only two children. Another aspect that will work in favor of Mercedes is the fact that children were involved and Occupier liability increases in view of a child’s lack of appreciation for danger and their “ingenuity in finding unexpected ways of doing mischief to themselves should never be underestimated”, as stated by Lord Hoffman.11 Occupiers are to allow children on their premises only if they are safe because they can expect children to be less careful than adults.12 As stated by Lord Sumner, where children are concerned, occupiers are expected to exercise a higher standard of care “appropriate to the inability or disability of those who are immature” as was laid out by Lord Sumner.13 Therefore, on this basis, since a higher standard of duty of care is expected, the failure of the Park to maintain the signs and the slides would be significant. The Park will not be held liable if the injury occurred due to Mercedes’ lack of knowledge of English and if she undertook a dangerous activity at her own risk. However, in this case, the issue is the safety of the slide from the point of view of its basic maintenance, and this lack of care is also evident in the poor maintenance of the signs. In a Park frequented by members of the public, including children, the owners will be expected to exercise very high standards of care, in view of the foreseeability of such accidents. In this case, Mercedes was not engaged in a risky activity, rather she was trying to save her children. Moreover, since the children were frequent visitors to the park and had used the slide before, there was no reason for Mercedes to anticipate such an accident. The fact that Mercedes has sustained bodily injury would further serve to enhance the case that exists in her favor for claiming damages from the park for the injury to her leg that she has sustained. (b) The standard by which the destruction of expensive equipment will be assessed is however different. While the Park may have to accept at least partial liability for the injury to her leg, since it was caused by the defective and ill-maintained slides, they may not be held liable for the damage to the equipment. All of the exemptions from liability that are cited above will apply to this case, but the nature of the injury has not caused bodily harm to the Plaintiff, so liability will not be so easily established. Mercedes has taken the risk by bringing such expensive equipment into a public park and the Park will not be expected to be responsible for her belongings as well. This is also related to contributory negligence where damages that may be payable for negligence under the Law reform (Contributory Negligence) Act of 1945, will be reduced if the visitor was also partly responsible through his/her negligence for the injury that occurred.14 The choice to bring such a valuable piece of equipment into a public park does attribute some contributory responsibility upon Mercedes, which she must accept and therefore the Park may be absolved of responsibility for such damage. Moreover, the fact that Mercedes does not understand English may not be sufficient grounds to absolve her of this responsibility to exercise care in what she chooses to bring into the Park, since the owners have taken steps to include exclusion clauses15 on the back of the ticket, disclaiming responsibility. These clauses can be set aside only if they are deemed to be unfair or unreasonable in their terms and conditions,16 which is not so in this case. (c) In the case of Francois and Leo, it is unlikely that they will have any chance of winning a suit for damages against the park. In this instance, they can allege that defective goods have been supplied and the Supply of Goods and Services Act of 1982 makes it clear that while there is no general warranty about the quality of a product, when a sale is made and a seller transfers the goods in the course of his business, there is an implied condition that the goods that have been supplied are of satisfactory quality17. Therefore the Park could be held liable for supplying defective goods, however in assessing whether the goods were satisfactory, the warning of the sales associate would also be relevant. Goods are to be used properly, if misused, no liability can be imputed upon a seller. goods are deemed to be satisfactory if “they meet the standard that a reasonable person would regard as satisfactory….taking into account all other relevant circumstances.”18 Applying this criterion, the sailboat would be deemed to be of satisfactory quality for use in a pool. However, in making the choice to go ahead and use it on sea despite the warnings of the sales assistant, then this will establish the limits of occupier liability of the Park, as was also set out in the case of Simms v Leigh.19 In this case the victim was injured when he hit against a concrete wall surrounding field. But the Occupier was not held liable in this case because although the danger existed, it was not one where the chances of its happening were very high and therefore, the Occupier could not be held liable for damages for injuries sustained due to dangers that were foreseeable but not very probable. Where Francis and Leo are concerned, the probability that a person would use a sailboat meant for a pool in the sea is not that high and the assistant, acting on behalf of the Park, warned the two that the product may not be suitable for the sea. However, by choosing to use it despite her warnings, the Law reform (Contributory Negligence) Act of 1945, since these two guests were partly responsible for the injuries that occurred through their own negligence. Read More