Sunshine Beach Holiday Park Issue - Essay Example

Sunshine Beach Holiday Park The issue in this question relates to occupiers’ liability of Sunshine Beach Holiday Park Owners for the injuries that have been caused lawful visitors, trespassers and independent contractors. Each of these will be discussed in turn. Then term ‘occupier’ was categorised in four by Lord Denning in Wheat v. E Lacon & Co. Ltd.1 the first being where a landlord lets premises, the landlord has parted with control of the premises so the tenant will be the occupier; secondly where the landlord lets part of a building but retains other parts such as a common staircase. the landlord will remain as occupier for the parts of the building he has retained as a result of the letting; where a landowner gives a licence to a person to use premises and retains the right to enter premises to do repairs, the owner retains control and is the occupier; and finally where the owner employs independent contractors to do work on premises, the owner will generally retain sufficient control to be classified as an occupier, however there is a possibility that the contractors will also be found to be occupiers, depending on the amount of control they have while the work is in progress. The liability of occupiers for lawful visitors is governed by Occupiers’ Liability Act 1957 and will be discussed in respect of Messrs Jones and Thompson. The issue of rights and liabilities between Sunshine Beach Holiday Park Owners and Messrs Jones and Thompson will now be discussed. The principle of common duty of care bestows a duty upon the occupier to take such care in all circumstances of the case as is reasonable to ensure that a (lawful) visitor will be reasonably safe when he uses the premises for the purposes for which he is invited or permitted to be there. (s.2(2) Occupiers’ Liability Act 1957) Further the Occupiers’ Liability Act 1957 goes on to state that a licensee (a person to whom a license is given) is owed a contractual duty of care (s.5(1) Occupiers’ Liability Act 1957). The duty of care owed by the occupier can be discharged, if a sufficient warning has been placed. (s.2(4)(a) Occupiers’ Liability Act 1957) One of the most important defence to actions brought under the Occupiers’ Liability Act is the defence of contributory negligence, that is where a visitor fails to use reasonable care for his own safety and such failure causes him damage. The effect of this will be a reduction in damages. When the common duty of care is considered, the circumstances that are included are the degree and want of care which would ordinarily be looked for, in such a visitor. Contributory negligence may allow for a reduction in damages or may extinguish damages per say. Under s.2(4)(b) of the Occupiers’ Liability Act 1957, where damage is caused to a visitor because of a danger as a result of faulty execution of work of construction, maintenance or repair by an independent contractor, who had been employed by the occupier, the occupier would not be held answerable for the existence of the danger, if under all the circumstances he had acted reasonably by assigning the task to an independent contractor and had taken steps (if any) that he reasonably ought to have to convince himself that the contractor was competent and the work had been properly done. The liability of occupier in respect of a fault of independent contractors was considered in Haseldine v Daw2, where it was held that the occupier was not liable for the fault of an independent contractor. The first thing that needs to be established is whether Sunshine Beach Holiday Park Owners can argue that they were not the occupiers as the specialists had been assigned the task of repairing the bridge. However, on the facts this argument will fail as Sunshine Beach Holiday Park Owners have retained sufficient control and will therefore be classified as occupiers, as they have clearly not parted with possession and on the facts they have merely allowed repair works to be carried out. Since Messrs Jones and Thompson had been granted a license, they would be classified as lawful visitors that is they are licensee and a contractual duty is owed to them. On the facts it is evident that they were required to cross the bridge and so clearly remain as lawful visitors. They have establish the common duty of care and that would not be a problem as they have been given a license. Further, Messrs Jones and Thompson will argue that the duty has been breached which has caused damages. Sunshine Beach Holiday Park Owners , on the contrary have to disprove this. It is not clear from the facts, as to whether a sufficient warning had been placed, and it can be argued that the warning should have been placed by the specialists who were hired by Sunshine Beach Holiday Park Owners . However, this argument is likely to fail as Sunshine Beach Holiday Park Owners would be required to take positive actions in this respect and ensure that such actions had been undertaken. Sunshine Beach Holiday Park Owners can argue that the Messrs Jones and Thompson were at fault and there is contributory negligence on their part when they crossed a bridge that was being repaired. However, on the facts, as it cannot be shown that there was a notice placed and Messrs Jones and Thompson can argue that the bridge should have been closed , had it been in such a terrible condition and an alternate route should have been provided in such circumstances. Thus the defence is likely to fail and therefore Messrs Jones and Thompson can indeed claim for the contractual duties under the Act and claim damages from Sunshine Beach Holiday Park Owners . Messrs Jones and Thompson will clearly not be actionable for the injuries caused to the maintenance team and the specialists, as they were clearly not at fault. The possible rights and liabilities of Sunshine Beach Holiday Park Owners and the specialists in respect of the injuries will now be considered. S.2(3)(b) of Occupiers’ Liability Act 1957 states 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’. Further the occupiers’ have not been found liable for injuries caused to independent contractors as a result of something which they had been asked to repair. (Roles v Nathan) 3 However the independent contractors can claim against their employers for using an unsafe system of work. (General cleaning contractors v Christmas)4 The specialists are independent contractors and not employees of Sunshine Beach Holiday Park Owners , as they have contract for service with Sunshine Beach Holiday Park Owners . It can argued that even though they had been hired to repair the bridge, the acts of Messrs Jones and Thompson were unforeseeable and so Sunshine Beach Holiday Park Owners should be held accountable for the injuries that have been caused to the specialists. However, Sunshine Beach Holiday Park Owners can argue that the warning sign should have been placed by the independent contractors and therefore can rely on the defence that their acts resulted in the injuries. On the facts it would be difficult to establish an action against Sunshine Beach Holiday Park Owners , however the specialists may be able to claim against their employers, based on their contract and the safety provided. The injured person of the parks’ maintenance team can claim against Sunshine Beach Holiday Park Owners , based on the facts that he had implied permission to be on the premises and was a lawful visitor. (Occupiers’ Liability Act 1957) He has the same rights as that of a lawful visitor and will be able to recover damages for the injuries if there had been no notice placed of the repair of the bridge. Further, if Parks’ maintenance team is under the employment of the Owner they can claim under their employment contract and that safe environment had not been provided. However, if they are acting as independent contractors they may claim against their employer for not ensuring safety of the employees or under their contract of employment. Finally, the rights and liabilities of Sunshine Beach Holiday Park Owners in respect of the injuries caused to the local boy, and the rights and liabilities, if any, of the local boy, will now be considered. Under s.1(3) of Occupiers’ Liability Act 1984, a duty of care for trespassers arises, when the occupier is aware or has reasonable grounds to believe that a danger exists and fails to take any actions so as to prevent it. This is also known as the ‘shut eye knowledge’. A trespasser has been defined as a parson who is allowed to enter one part of a building and he subsequently enters another part, without authority, thereby making him a trespasser (The Calgarth)5 The duty of care owed to a trespasser has to be established by the claimant. Further if there is a danger, the courts have taken into account the fact that, a notice of the existence of the danger, has been placed (Tomlinson v Congleton District Council)6 The duty of care can clearly be established from the fact that Mr. Smith had clearly notified Sunshine Beach Holiday Park Owners of the existence of the danger and they had failed to take any action in respect of the danger .(as per the facts). The courts have taken a stricter approach when finding liability for occupiers in respect of children. In Glasgow Corporation v Taylor7 in a public park where no warning had been placed about the fact that the berries were poisonous, a child ate them. The occupiers argued that the danger was obvious, but, the courts rejected the argument and found for the claimant. Further, the responsibilities of parents to accompany children and act reasonably, along with the reasonable acts of the occupier have been found to be of the essence. (Phipps v Rochester Corporation)8 Finally, if there is any allurement which tends to attract children towards itself, has been taken into account, however the injury caused as a result must also be foreseeable. (Jolly v Sutton Borough Council)9 The injury that has been caused to the local boy is clearly foreseeable. On the facts, it is possible to construe that Sunshine Beach Holiday Park Owners had not placed a warning and so they clearly cannot rely on that. The age of the boy would be of the essence when the rights and liabilities are considered. If the boy is of an age where he should have been accompanied by his parents, it would be unreasonable on the part of the parents and possibly eliminating any liability on part of Sunshine Beach Holiday Park Owners . However, if it is found that the age of the local boy was that where he could have foreseen the risk of a possible injury, then again the liability may be extinguished or reduced. However, on the facts it is clearly seen that there has been shut eye knowledge on the part of Sunshine Beach Holiday Park Owners , as they should have clearly taken an action to prevent such an event occurring and it would be difficult to establish that the boy should have been aware of the injury, as foreseeability would clearly be an issue. Finally, Sunshine Beach Holiday Park Owners can argue that the boy was contributory negligent by being trespasser, this argument would fail, as being a trespasser would clearly not disprove the occupiers’ liability, but, it might lead to a reduction in the damages that may be granted to the local boy. Bibliography Deakin, Simon, Angus Charles Johnston, and Basil S. Markesinis. Markesinis and Deakins Tort Law. Oxford: Oxford university press, 2008. Read More