Wednesday, November 29, 2006

 

Tuesday 28 November 2006

We began with the third, and least important, of the defenes to negligence, that of EX TURPI CAUSA. The courts may deny a cause of action to a claimant who suffers damage while participating in a criminal activity. In Ashton v Turner (1981) the claimant and defendant made a getaway from a robbery in a car driven by the defendant. The car crashed and the claimant was injured. It was held that no duty of care was owed to the claimant on the grounds of ex turpi causa.

Public policy prevented a person who had been convicted of a serious criminal offence from suing the health authority which, he claimed, failed to treat his mental condition with reasonable care, prior to the offence being committed. The claimant in Clunis v Camden And Islington HA (1997) had been convicted of manslaughter after being discharged from one of the defendant’s hospitals. Mr Clunis’ counsel tried to convince the Court of Appeal that the maxim ex turpi causa non oritur actio had no application in a tort action and that his client’s cause of action did not depend upon proof that he was guilty of manslaughter – rather that the doctors should have reasonably foreseen the circumstances in which he was likely to commit an act of homicide. Their Lordships held that the maxim did provide a valid answer to the claimant’s claim since the central issue did relate to the claimant’s own criminal activity.

One final point, the role of the rescuer. Where A’s negligence places B in danger and C is injured whilst attempting or effecting a rescue of B, then three branches of law may come into play. These are volenti, contributory negligence and causation. For example, by A’s negligence in crashing into B’s vehicle, B is rendered unconscious & his vehicle catches fire. C is injured in attempting to pull him from the blaze.


The situation is similar where the person who has been rescued is the person who has been negligent: Baker v Hopkins (1959). Dr Baker went down a well in an attempt to assist two workmen who had entered the well and thus exposed themselves to the risk of carbon monoxide poisoning. All three men died and successful actions were brought against the employer of the workmen.

We then turned to an examination favourite, well worth the learning – Defective Premises. This is a specialised area of negligence, liability governed primarily by two the OCCUPIERS’ LIABILITY ACT 1957 (applicable to lawful visitors) & 1984 (applicable to trespassers.

Vendors, landlords, builders or professional people may also be liable for a defective premises, as we shall see later.

Beginning with the 1957 Act. A claimant may claim for personal injuries and damage to property. This includes the property of persons who are themselves not visitors. The Act applies not only to land and buildings but also to fixed and moveable structures, including any vessel, vehicle or aircraft (s1(3)(a)).

There is no statutory definition of an occupier, & the term is misleading as the duty rests on the person who CONTROLS the premises, which is very different. Exclusive control is not necessary and there can be more than one occupier of premises, e.g. in a block of flats.

In Harris v Birkenhead Corp. (1976) the defendant issued a compulsory purchase order over a house, but when it was vacated they did nothing to board it up. The claimant (4 years old) entered through an insecure front door & fell from a 2nd floor window. The council was held to be the occupier, even though they weren’t in actual physical possession. The local authority had the legal right to control the premises to the exclusion of the former owner & were in the best position to avoid accidents.

The duty is owed to the ‘lawful visitor’, so who is he? Common law helps:


It is possible to place a limit on the lawful visitor, “Come in, but don’t ...”



Section 2(2) of the Act provides that the occupier owes a common duty of care to all lawful visitors:

The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises or the purposes for which he is invited or permitted to be there.” So:


The Act provides four specific cases where an appropriate standard of care will be required:

s2(3)(a) – Children
s2(3)(b) – Exercise of a calling
s2(4)(a) – Warning of danger
s2(4)(b) – Independent contractors

Children - The act states:

An occupier must be prepared for children to be less careful than adults. If the occupier allows a child to enter the premises, then the premises must be reasonably safe for a child of that age.”

Glasgow Corporation v Taylor (1922): a seven-year-old claimant died after eating poisonous berries from a tree in a park. It was not fenced in, & there was no warning. The defendant was held to be liable.

The very young present a problem as to whether parents should have supervised them. It may come down to allocating liability between the parents & the occupier: Phipps v Rochester Corporation (1955). In Phipps it was stated that: “It would not be socially desirable if parents were, as a matter of course, able to shift the burden of looking after their children from their own shoulders to those who happen to have accessible bits of land”.

Remember that the 1957 Act did not apply to trespassers, & so common law tried to deal with it. In British Rail v Herrington (1972) the House of Lords decided that a duty of care was owed to child trespassers through a “basic duty of common humanity”.

Section 2(3)(b) provides that:

An occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.”

Roles v Nathan (1963): two chimney sweeps were killed by carbon monoxide gas while attempting to seal a sweep hole in the chimney of a boiler. The occupier was held not liable for the deaths.

General Cleaning Contractors v Christmas (1953): the occupier was held not liable to a window cleaner who was injured when a defective window closed suddenly, trapping the window cleaner’s hand and causing him to fall off the building. The window cleaner was expected to guard against the special risks incident to his calling. However, the claimant’s employer was in breach of his duty of care to provide a safe system of work for the window cleaners. That comes later.

The fact that a visitor has a specific skill is not sufficient in itself to absolve the occupier from liability where he has not exercised the required degree of skill. A fireman who has exercised reasonable care m an attempt to extinguish a negligently started fire will still be able to recover against the occupier of the premises: Salmon v Seafarer’s Restaurant (1983) approved by the House of Lords in Ogwo v Taylor (1988).

In Ogwo a fireman was injured by scalding steam created in the confined roof space of the house where the occupier had negligently started a fire. The fireman was wearing protective clothing but it proved to be inadequate for the conditions in which he was fighting this particular fire.

Section 2(4)(a) provides:

Where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more, as absolving the occupier from liability, unless in all the circumstances, it was enough to enable the visitor to be reasonably safe.”

In other words, the warning must be sufficient to cover the danger. A very general warning - Danger! - which does not give a visitor enough information to take steps to guard against the risk, would be inadequate to absolve the occupier.

Whether a warning has this effect is a question of fact in each case and the warning will not automatically discharge the duty. In Roles v Nathan (above) the sweeps were warned of the danger of flames so the section clearly applied.

Section 2(4)(b) provides:

Where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and the work had been properly done.”

All this means is that in order to discharge the common duty of care the occupier must have acted reasonably in entrusting the work to an independent contractor and have selected the contractor with reasonable care. Put simply, don’t get your mate who is a bricklayer to service the central heating, and don’t tell the properly trained independent contractor to cut corners to save a few bob.

Where appropriate the work must be properly supervised and checked when it is completed. If the job is of a technical nature, for example lift maintenance, the occupier may have discharged the duty by entrusting it to a competent contractor: Haseldine v Daw (1941): the claimant died when the lift hit the bottom of the shaft.

Where the job is straightforward such as clearing snow from a step, the occupier will be required to check that the job has been properly done: Woodward v Mayor Of Hastings (1945). In such circumstances, even a reasonably prudent non-expert could assess that the task had been performed inadequately and the steps remained a hazard to visitors entering the premises.

We will continue with this next week.

Comments:
A Solicitors for Medical Negligence will advise you on how the claim should be funded. If the firm is on one of the clinical negligence panels he or she may be in a position to apply for public funding if your financial situation allows you to do so.
 
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